Legislature(2015 - 2016)BELTZ 105 (TSBldg)
04/04/2016 01:30 PM Senate JUDICIARY
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SB 164-FISH & GAME: OFFENSES; LICENSES; PENALTIES 2:24:28 PM CHAIR MCGUIRE announced the consideration of SB 164. 2:24:30 PM SENATOR COGHILL moved to adopt the CS for SB 164, labeled 29- GS2958\H, as the working document. CHAIR MCGUIRE announced that without objection, version H is before the committee. 2:25:01 PM KEVIN BROOKS, Deputy Commissioner, Alaska Department of Fish and Game (ADF&G), noted that the four members present heard SB 164 in the Senate Resources Committee. He explained that the purpose of the legislation is to provide Alaska Wildlife Troopers with the authority to issue correctable citations. The bill would prohibit a person from receiving a sport fishing, hunting, or trapping license in Alaska if their privileges had been suspended or revoked in another state. The bill also increases restitution for animals harvested illegally, standardizes penalties for offenses, and provides an additional tool for Alaska Wildlife Troopers to charge some wildlife, fisheries, and habitat offenses as violations. Finally, the bill also allows the display of a license in an electronic format. He reviewed the following changes between the original, version A, and the current, version H, for SB 164: 1) Page 1, line 5 adds a semicolon to the title creating an exemption from payment of restitution for certain unlawful takings of big game animals. 2) Page 2, section 3, line 21 removes the words "tag or permit" from an item that can be correctable, and removes reference to the Court. An individual can correct a violation at a Department of Public Safety office. 3) Page 5, section 17, line 6 adds language "and c of this section" to address changes in section 18 of this bill. 4) Page 5, section 17 lines 14-25 changes restitution amounts that the court may apply if the court feels it is appropriate. These increases represent the value of the illegally taken resource to the citizens of Alaska. 5) Page 5, line 26 deleted section 17 of the original bill which was redundant with section 15 of the original bill. 6) Page 5, section 18, lines 26-31 creates a new section that provides that a court may not order restitution under section 17 of this bill in a case where a defendant voluntarily turns themselves in and is charged with a violation offence. It also provides that a person must voluntarily and immediately report to ADFG or DPS a violation that they committed to qualify for this affirmative defense. 7) Page 6, section 24, line 21-22 was a drafting error that was corrected to reflect the correct statute number. 8) Page 7, line 7, delete section 27 of the original bill related to Court Rule 5(a)(4). 2:27:53 PM VICE CHAIR COGHILL asked Major Chastain if he had anything to add related to the changes in version H. 2:28:08 PM MAJOR BERNARD CHASTAIN, Deputy Director, Alaska Wildlife Troopers, Department of Public Safety (DPS), said the substantive changes occur in Section 18. He offered to address those issues and discuss the goal of adding that language. VICE CHAIR COGHILL asked him to discuss the new language in Section 18, the idea of Court Rule 5(a)(4) for correctable citations going directly to DPS, and how the fines will be implemented. MAJOR CHASTAIN explained that Sections 1 and 3 provide that a trooper or law enforcement officer who is charged specifically with enforcing fish and game laws regarding licenses may issue an official correctable citation in instances where a person forgot their license in their vehicle or at home. They will then have 30 days to bring their license to any office of the issuing agency to show proof of licensure. The citation is corrected and is not part of the person's record. Section 18 relates to self-report violations. It adds language that states the person must voluntarily and immediately report the taking to the department and surrender all salvaged portions of the animal. In those instances, the court is prohibited from applying the restitution amounts listed in Section 17. The individual is only fined for the offense. 2:33:15 PM SENATOR WIELECHOWSKI returned to Section 3 and asked if a person who received a citation can mail or email proof of their licensure. MAJOR CHASTAIN replied the process in place for all correctable citations is that the individual must bring the citation in person to any office of the arresting or citing agency. SENATOR WIELECHOWSKI commented that this likely will be burdensome for some people living in rural Alaska. He asked if it would be "a big deal" to allow the individual to mail or email the proof. MAJOR CHASTAIN said the current process requires the citation itself to be officially stamped; that tells the court that the citation has been officially corrected and to pursue no action. SENATOR WIELECHOWSKI wondered if there couldn't be a way to use technology to make the process less burdensome. He asked the administration to take another look to see if that isn't possible. MAJOR CHASTAIN said there is likely a way for all correctable citations to be addressed either through the mail or an electronic check-off, but that process isn't in place at this point. 2:36:34 PM SENATOR MICCICHE directed attention to page 2, line 3, and recalled discussion in the previous committee was that the reference in paragraph (1) would be sport of personal use fishing. Version H only references sport fishing. MAJOR CHASTAIN said personal use isn't included in that section. As previously discussed, a personal use permit must be in the individual's possession at the time of the take. There are also recording requirements on the permit before leaving the fishing site. Those are separate violations and the intent was not to make those a correctable citation. SENATOR MICCICHE offered his understanding that Section 1 is not about correctable citations. MAJOR CHASTAIN explained that Section 1 is the vehicle for the correctable citation in Section 3. VICE CHAIR COGHILL asked if Section 18 can be implemented with the existing language. MAJOR CHASTAIN said DPS believes, in consultation with the Department of Law, that the language will prohibit a judge from imposing restitution when a person voluntarily turns him/herself in. SENATOR MICCICHE noted that Section 18 is about self-reporting for game but not fish even though that was part of the discussion in the previous committee. He questioned how the department would handle a fisher being over the line due to an equipment breakdown in a commercial fishery. His preference is that the fisher would notify the department they were over the line and harvest the fish as opposed to cutting the gear. He noted this an area of fines rather than restitution. MAJOR CHASTAIN said he isn't aware of a self-reported commercial fishing violation other than when someone calls to report a mechanical failure. In those situations, the fisherman is treated as fairly as possible. There is no restitution for commercial fishing in this area but if the fish are caught illegally they're sold and the proceeds are held in an account pending the disposition from the court. SENATOR MICCICHE asked why sport fishing and commercial fishing aren't included under Section 18. He clarified that for commercial fishing he is only talking about a first offense. MAJOR CHASTAIN said the short answer is that there are no restitution amounts in sport fishing or commercial fishing. In a typical case of being over the limit in sport fishing, the bail schedule provides a flat fine for the offense and an additional amount for each fish taken illegally. SENATOR MICCICHE commented on the importance of encouraging the best behavior. MAJOR CHASTAIN said this could be more clear, but he didn't doesn't know how that would look. 2:47:38 PM SENATOR WIELECHOWSKI asked if the salvaged portions of the animal discussed in Section 18 include bear paws and bear gall bladders. MAJOR CHASTAIN replied it is all parts of the animal and if an investigation indicated the parts were being sold, the individual would not be immune from restitution. SENATOR WIELECHOWSKI asked if there is a problem in Alaska with trafficking animal parts, because he isn't sure the language provides adequate protection from that. MAJOR CHASTAIN said other areas of regulation and statute require salvage of all game meat and applicable parts, and he feels very comfortable that together they provide adequate protection. With regard to trafficking bear parts, he said the problem isn't as bad as it was in the 1990s. 2:50:43 PM SENATOR MICCICHE mentioned the 50-inch challenge and expressed concern that Section 18 doesn't impose a first-time or once-in- five-years limit. Without that, it eliminates the incentive for a hunter to be extra careful. MAJOR CHASTAIN agreed that there was a lot of discussion about that issue in particular, and it came down to giving the troopers or the citing agency flexibility in charging because every situation is different. He explained that violation offenses are typically charged on a first time occurrence only, but it's at the discretion of the district attorney's office or the charging agency because there are many reasons a first offense shouldn't be charged as a violation. One example is a call or multiple calls from people who are watching a violation occur. That scenario is a call for service meaning that the troopers would investigate and make a determination about whether or not the person intended to turn him/herself in. The language is vague to allow the needed flexibility. SENATOR MICCICHE read the language in Section 17 on page 5, line 12, and in Section 18 on page 5, line 27, and asked if there is another way to charge the illegal taking of an animal other than a violation. MAJOR CHASTAIN explained that all these crimes default to a misdemeanor offense; 5 AAC 92 and associated regulations provide the ability to charge those crimes as violations. Whenever someone self-reports, they are charged with a violation offense instead of a misdemeanor. That fine is $500. The language on page 5, line 12, comes from the part of statute dealing with misdemeanor offenses so the court may order up to the amounts listed on page 5, lines 14-25, in restitution for misdemeanor offenses. Section 18 says that when the offense is charged as a violation, the court cannot impose restitution. SENATOR WIELECHOWSKI said he shares Senator Micciche's concern with Section 18 because he reads the language as mandatory, not discretionary. Should the bill pass as currently drafted, individuals who are now being extremely careful may decide to take a change because they'll get a free shot if they self- report. The language "voluntarily and immediately reported" is also concerning because that could be days later depending on how remote the hunting location happens to be. He pointed out that someone could wait until they were close to their house and then decide not to report after all and instead opt to keep that undersized moose. MAJOR CHASTAIN said it's important to remember that the charging agency and the district attorney's office have the discretion to decide when to charge as a violation. He deferred further comment to Mr. Peterson. 2:57:30 PM AARON PETERSON, Assistant District Attorney, Criminal Division, Department of Law, Anchorage, Alaska, said Section 18 is talking about a case where a person voluntarily turns him/herself in and the court being unable to issue an order to pay restitution. However, if it's somebody who does this year after year or for other reasons the Department of Law decided to treat it as a misdemeanor, the potential fine is $10,000 per offense and loss of hunting privileges for an extended period of time. These penalties are much more substantial than restitution, although restitution is important as evidenced by the numbers listed in Section 17. To zero in on that alone misses the greater point that somebody who decides to shoot a 30-inch moose and claim they thought it was 50 inches, isn't going to get off. The Department of Law takes this seriously and when an offense needs to be treated as a misdemeanor it is. MR. PETERSON pointed out that while the language "voluntarily and immediately" is somewhat subjective, it is one of the many places in criminal law where a determination has to be made. SENATOR WIELECHOWSKI commented that he has a long-standing concern about leaving too much discretion to prosecutors; that's the job of the legislature. SENATOR MICCICHE expressed increased satisfaction as a result of the discussion. He summarized his understanding that the prosecutor would be more likely to charge with a misdemeanor and require restitution on a subsequent offense. MAJOR CHASTAIN agreed with the summary and advised that it is rare for a person who self-reports to violate a second time. SENATOR MICCICHE said he's ready to let go of his concern about the subjective use of prosecution with assurance that the department "has been fairly pure in the prosecution of these cases." He asked Major Chastain what his experience has been. MAJOR CHASTAIN confirmed that the Wildlife Troopers statewide work very closely with the district attorney offices. DPS has policies and procedures in place and the troopers are well informed on how to follow those policies and charge appropriately with the district attorney's assistance. 3:04:59 PM MR. BROOKS informed the committee that the restitution amounts have been raised 50 percent and the companion bill in the House raises some of those higher yet. The House Resources committee thought the amounts ought to be higher to reflect the value of the animals. 3:05:44 PM CHAIR MCGUIRE stated she would hold SB 164 in committee.