Legislature(2009 - 2010)BUTROVICH 205

04/07/2010 08:30 AM Senate JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Continued from 4/5/10 Meeting --
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Uniform Rule 23 Waived
Moved CSSB 222(JUD) Out of Committee
Moved CSSB 303(JUD) Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved Out of Committee on 4/5/10
Scheduled But Not Heard
                        HB 386-CITATIONS                                                                                    
8:41:08 AM                                                                                                                    
CHAIR  FRENCH  announced  the  consideration  of  HB  386.  [CSHB
386(FIN) was before the committee.]                                                                                             
REPRESENTATIVE  MIKE   HAWKER,  sponsor   of  HB  386,   said  he                                                               
introduced the  bill at the  request of the Department  of Public                                                               
Safety (DPS). It  empowers DPS to prescribe a  uniform format for                                                               
citations as  well as a  standardized process for people  to deal                                                               
with the  citations they  have received.  DPS believes  that this                                                               
would   reduce   costs   and   increase   operating   efficiency,                                                               
particularly  as  the  use of  electronic  technology  increases.                                                               
Although  the  bill addresses  a  lot  of different  sections  of                                                               
statute, many of the changes are conforming.                                                                                    
8:43:17 AM                                                                                                                    
JULIE LUCKY, staff to Representative  Mike Hawker, said she would                                                               
go through  the prepared overview  that is in the  packets, which                                                               
addresses 10 of the 65 sections  in the bill. Section 21 sets out                                                               
the requirements  for the standard  citation format.  It requires                                                               
the commissioner  of DPS  to prescribe a  standard format  and to                                                               
adopt regulations  to do so. It  also sets out, in  a new section                                                               
of law, certain things that need to happen with citations.                                                                      
Section 22  has technical changes  to put the language  in active                                                               
voice  and on  page 6,  line 7,  the phrase  "has reasonable  and                                                               
probable  cause to  believe"  has been  replaced  with the  words                                                               
"reasonably believes." This new  language mirrors other places in                                                               
statute where  somebody has to  make a  judgment, but it's  not a                                                               
probable cause where there is an actual violation.                                                                              
CHAIR FRENCH opined that it's  a good change. Joining "reasonable                                                               
cause" and  "probable cause"  in the  same sentence  is confusing                                                               
because  they  are two  different  standards.  He asked  if  they                                                               
learned in other committees that  "reasonable belief" is probably                                                               
an appropriate field-screening standard for an officer.                                                                         
MS. LUCKY answered yes, and it seemed like a reasonable change.                                                                 
Section  23 removes  a provision  from AS  12.25.190 that  says a                                                               
person  can request  a hearing  that  is earlier  than five  days                                                               
after a citation  was issued. She related  her understanding that                                                               
if someone did  need an earlier hearing, there is  still a method                                                               
to request that.  This section also deletes  language that refers                                                               
to deadlines, which  is no longer needed because  of the approval                                                               
of standard deadlines, she said.                                                                                                
Section 24 is  included in the bill because of  the Voting Safety                                                               
Act.  It  looks  very  similar  to Section  23,  but  it  has  an                                                               
effective  date. If  the  Voting Safety  Act  sunsets, this  will                                                               
become law, she said.                                                                                                           
8:47:57 AM                                                                                                                    
Section  25  amends  AS  12.25.195(a).  It  adds  the  clarifying                                                               
language, "does  not contest the  citation" and inserts  a 30-day                                                               
deadline for paying the fine for a scheduled offense.                                                                           
Section  26 addresses  the form  for citations.  She pointed  out                                                               
that  there is  a requirement  that the  citation be  in writing.                                                               
Most  of the  other  changes  in this  section  are technical  in                                                               
nature. Section 27 amends AS  12.25.210(a) and talks about record                                                               
keeping  requirements for  peace officers.  It says  that if  the                                                               
issuing agency  fails to file  the citation in a  timely fashion,                                                               
that is not a basis for dismissal of the citation.                                                                              
Sections  28  and 29  make  technical  changes to  include  other                                                               
agencies, not just peace officers in these statutes.                                                                            
8:51:00 AM                                                                                                                    
Sections 30  and 31  are the penalty  sections that  outline what                                                               
happens  to someone  who doesn't  pay  their bail  or follow  the                                                               
requirements  outlined by  the citation.  She noted  that concern                                                               
had been expressed that this might  make some of these offenses a                                                               
higher misdemeanor crime,  but that is not  the case. "Department                                                               
of Law  assures me  that we  are not  making a  misdemeanor where                                                               
there  wasn't  one  before,"  she  said.  Section  30  amends  AS                                                               
12.25.230(a) and  specifically says  that a  person who  fails to                                                               
appear  to  answer  their  citation   is  guilty  of  a  class  A                                                               
misdemeanor. Section 31 repeals  and reenacts AS 12.25.230(b) and                                                               
specifically says that a person who  fails to appear to pay their                                                               
fine or to  appear in response to their citation  for a scheduled                                                               
offense is guilty of a class B misdemeanor.                                                                                     
MS. LUCKY said the aforementioned  sections contain the "meat" of                                                               
the bill. "The  majority of the bill is just  conforming to those                                                               
changes and deadlines."                                                                                                         
CHAIR  FRENCH   summarized  that  Sections  30   and  31  provide                                                               
penalties  for someone  who essentially  does not  deal with  the                                                               
citation they were issued.                                                                                                      
MS. LUCKY agreed.                                                                                                               
CHAIR  FRENCH  asked  her  to  give  examples  of  scheduled  and                                                               
unscheduled offenses.                                                                                                           
MS. LUCKY  explained that a  scheduled offense is an  offense for                                                               
which there is a scheduled fine.  For example, if you park in the                                                               
wrong place the  fine is X dollars. An unscheduled  offense is an                                                               
offense that does not have a schedule of fines.                                                                                 
CHAIR FRENCH asked if speeding is an unscheduled offense.                                                                       
MS. LUCKY deferred to the Department of Public Safety.                                                                          
8:54:01 AM                                                                                                                    
KAT  PETERSON, Lieutenant,  Division  of  Alaska State  Troopers,                                                               
Department of  Public Safety (DPS),  informed the  committee that                                                               
speeding is  a scheduled offense;  a bale amount can  be provided                                                               
on  the  citation itself.  Unscheduled  offenses  are those  that                                                               
require a mandatory court appearance  to find out the bail. These                                                               
include  minor   consuming,  minor  operating  a   vehicle  after                                                               
consuming alcohol,  and tampering  with official  traffic control                                                               
CHAIR FRENCH asked about possession of marijuana.                                                                               
LIEUTENANT  PETERSON  replied that  is  a  criminal offence.  The                                                               
unscheduled offenses she mentioned  are mandatory infractions and                                                               
there aren't  a lot of those  still on the books  that don't have                                                               
bail on  the schedule  until you get  into the  criminal offenses                                                               
like  driving while  your license  is suspended.  She added  that                                                               
speeding over 20  miles per hour in a school  zone is a mandatory                                                               
infraction that requires a court appearance.                                                                                    
CHAIR FRENCH recapped  that if a person doesn't show  up to pay a                                                               
fine  for a  scheduled  offense, they  are guilty  of  a class  B                                                               
misdemeanor.  Those offenses  would include  speeding or  driving                                                               
with a headlight  or taillight out. But if a  person doesn't show                                                               
up  for  a  minor  consuming, minor  operating  a  vehicle  after                                                               
consuming alcohol, or tampering  with an official traffic control                                                               
device, the person is guilty of a class A misdemeanor.                                                                          
LIEUTENANT PETERSON agreed.                                                                                                     
8:56:44 AM                                                                                                                    
SENATOR COGHILL recalled  a deliberate policy call  that was made                                                               
in the  House that gave fire  departments the ability to  issue a                                                               
citation for  CO emissions,  but no penalty  was attached. Noting                                                               
that  the  Fairbanks  Northstar  Borough  is  currently  debating                                                               
whether or not  particulates from a furnace should  be an offense                                                               
and  if  it  should  have  a class  A  misdemeanor  attached,  he                                                               
questioned  how the  broadened authority  under  this bill  would                                                               
reach  into the  police or  some local  area and  affect a  local                                                               
MS.  LUCKY  said   the  bill  does  contain   the  language,  "or                                                               
specifically provided  by law" but  she is unsure whether  or not                                                               
that  would  include an  ordinance.  She  offered to  check  with                                                               
legislative legal to find out.                                                                                                  
SENATOR COGHILL  said he wouldn't hold  the bill up but  he knows                                                               
that various  communities are for  a variety of reasons  going to                                                               
make these policy  calls to issue citations.  What they're really                                                               
saying  is they  want  to be  able to  apply  pressure to  change                                                               
certain behaviors, but they don't want to assess a fine.                                                                        
MS. LUCKY said  she doesn't believe it would be  an issue because                                                               
a fine of zero is allowed, but she would double check.                                                                          
9:00:04 AM                                                                                                                    
CHAIR FRENCH  asked Lieutenant Peterson what  the maximum penalty                                                               
is for a  minor in possession or consuming alcohol  for the first                                                               
or second offense.                                                                                                              
LIEUTENANT  PETERSON explained  that it's  an infraction  for the                                                               
first and  second offense.  The maximum penalty  is a  $300 fine,                                                               
but most people receive a $100 fine.                                                                                            
CHAIR FRENCH asked if there is any mandatory community service.                                                                 
LIEUTENANT PETERSON replied she hasn't seen that.                                                                               
CHAIR FRENCH  said he bought  this up because he's  puzzling over                                                               
whether or  not this ratchets  up the  penalty too much.  If this                                                               
were to become law, someone who  is under age 21 and misses their                                                               
court hearing would  face a year in jail instead  of owing a $300                                                               
fine. That's the  same penalty that's applied to  somebody who is                                                               
charge  with domestic  violence  or DWI  and  misses their  court                                                               
hearing. People need to deal  with their citations, but generally                                                               
failure to appear  is penalized at the same level  as the charge,                                                               
he said. If  the charge is a misdemeanor and  you miss court it's                                                               
a misdemeanor  and if the charge  is a felony and  you miss court                                                               
it's  a felony.  Under  this bill,  people who  miss  court on  a                                                               
speeding ticket would face jail time.                                                                                           
LIEUTENANT  PETERSON said  most misdemeanor  charges result  in a                                                               
fine rather  than jail time.  She also  pointed out that  most of                                                               
the behaviors that are on  a scheduled fine are processed through                                                               
the permanent  fund dividend (PFD)  and they aren't changed  to a                                                               
class A or class B misdemeanor.                                                                                                 
CHAIR FRENCH asked if she's saying  that if you miss court you'll                                                               
be found guilty  and assessed a fine that will  be garnished from                                                               
your  PFD, but  you probably  won't get  charged with  failure to                                                               
LIEUTENANT PETERSON replied that's what's currently happening.                                                                  
9:03:04 AM                                                                                                                    
SENATOR  WIELECHOWSKI  asked if  there  had  been and  discussion                                                               
about removing  the language "has  reasonable and  probable cause                                                               
to believe" from page 6, lines 7-8.                                                                                             
CHAIR  FRENCH  explained  that it  eliminates  the  confusion  of                                                               
joining  the standard  of reasonable  cause and  the standard  of                                                               
probable  cause  in the  same  sentence.  The phrase  "reasonable                                                               
beliefs" replaces  that language  and the  Department of  Law may                                                               
want to talk about why that is significant, he said.                                                                            
DAVID  BROWER,  Assistant  Attorney General,  Criminal  Division,                                                               
Department  of Law,  addressing the  questions about  changing AS                                                               
12.25.230(a) to  a class A  misdemeanor and AS 12.25.230(b)  to a                                                               
class   B  misdemeanor,   clarified   that   there  are   several                                                               
misdemeanors that  are specific and  AS 12.25.230 was  a specific                                                               
misdemeanor.  You  could   get  up  to  a  year   in  jail  under                                                               
subsections (a)  and (b) and  a fine of  $1000. That wasn't  an A                                                               
misdemeanor because an A misdemeanor has a higher fine, he said.                                                                
CHAIR FRENCH said it's called a special class misdemeanor.                                                                      
MR.  BROWER agreed.  He explained  that failure  to appear  is an                                                               
unclassified  misdemeanor because  it doesn't  have a  particular                                                               
fine. It's  neither an A misdemeanor  nor a B misdemeanor  so the                                                               
proposed change  in .230  to an A  misdemeanor in  subsection (a)                                                               
and  a  B  misdemeanor  in subsection  (b)  actually  lowers  the                                                               
penalty.  Current  law  says  that someone  who  has  a  bailable                                                               
offense can  pay their  fine, but  if and  they don't  appear the                                                               
citation  is  converted into  a  summons.  That's impossible,  he                                                               
said, because a  summons has to indicate the crime  for which the                                                               
person is summoned for and  a citation wouldn't have that because                                                               
failing to  appear is  a different crime.  But a  person wouldn't                                                               
automatically get  charged with  failure to appear,  because that                                                               
has to come from the prosecutor.                                                                                                
Addressing  the  question  about reasonable  cause  and  probable                                                               
cause, he explained  that in the law there are  terms of art like                                                               
"probable cause"  and "reasonable  suspicion" and  sometimes they                                                               
get mixed  up in statute and  have to be changed.  He provided an                                                               
example.  In this  statute, where  there's  reasonable cause  and                                                               
probable cause, it's  giving the police the  discretion to arrest                                                               
someone, but the primary goal isn't  to make an arrest unless the                                                               
officer reasonably  believes that the  person is a danger  or has                                                               
probable cause  to believe the  person is a danger.  He continued                                                               
to say:                                                                                                                         
     If  you have  probable  cause to  believe  a crime  was                                                                    
     committed, you can look at  certain elements and see if                                                                    
     those elements are present. If  you have probable cause                                                                    
     to believe someone  is a danger, I think it  turns on a                                                                    
     reasonable  belief  because  there  is  no  crime  with                                                                    
     danger and  what would  probable cause  be. I  think it                                                                    
     was too  confusing, but I  don't think that  the change                                                                    
     will have any practical effect.                                                                                            
SENATOR  WIELECHOWSKI  said he  thought  he  heard him  say  that                                                               
reasonable cause is a lower standard than probable cause.                                                                       
MR. BROWER replied reasonable cause  isn't really a standard, but                                                               
reasonably believes would be a standard.                                                                                        
CHAIR FRENCH said  reasonable suspicion is the  field context for                                                               
a pat and frisk.                                                                                                                
MR.  BROWER  said reasonable  suspicion  and  probable cause  are                                                               
terms that  are used for  police and courts to  determine whether                                                               
an officer had  a reasonable suspicion to believe  that some type                                                               
of  crime  was  happening.  Probable   cause  requires  that  the                                                               
elements of the crime are actually  met by certain facts that the                                                               
officer knows.  In this case,  the officer has probable  cause to                                                               
cite the person  for the violation and can make  an arrest if the                                                               
person refuses  to take the  citation or refuses to  identify him                                                               
or herself.  The officer  can also  make an arrest  if he  or she                                                               
makes the determination that the person is a danger.                                                                            
SENATOR WIELECHOWSKI said it seems  that this makes it easier for                                                               
officers to arrest someone.                                                                                                     
MR.  BROWER  replied that's  not  the  case because  the  officer                                                               
already has  the authority  to arrest  someone in  that situation                                                               
because they have probable cause.                                                                                               
SENATOR WIELECHOWSKI reread the language  and agreed that in this                                                               
situation it's  purely the officer's  discretion to  either issue                                                               
the citation or take the person to the court.                                                                                   
MR.  BROWER said  that's right  and the  language in  the section                                                               
that  had reasonable  cause and  probable  cause was  essentially                                                               
taking that discretion  away and requiring the  officer to arrest                                                               
9:09:58 AM                                                                                                                    
CHAIR FRENCH asked Ms. Lucky where  the bill goes after it leaves                                                               
this committee.                                                                                                                 
MS.  LUCKY said  this  is  the last  committee  of referral.  She                                                               
informed the  committee that this phrase  doesn't appear anywhere                                                               
else  in statute,  but  AS 47.12.245  However,  there is  another                                                               
section of  statute 47.12.245  regarding delinquent  minors talks                                                               
about when a peace officer should  and should not make an arrest.                                                               
In that  statute, a peace officer  can make an arrest  anytime he                                                               
or she reasonably  believes the minor is a  fugitive from justice                                                               
or  has  probable cause  to  believe  the  minor has  violated  a                                                               
condition of  the minor's release or  probation. This illustrates                                                               
the  point DOL  is talking  about where  you have  probable cause                                                               
that  a violation  has occurred;  where  you have  elements of  a                                                               
crime or a reasonable belief and  the peace officer has to make a                                                               
determination about the state of affairs  or state of mind of the                                                               
person they are citing.                                                                                                         
CHAIR  FRENCH  announced  he  would   hold  HB  386  for  further                                                               

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