Legislature(2015 - 2016)GRUENBERG 120
04/09/2016 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB205 | |
| HB214 | |
| HB286 | |
| HB334 | |
| HB286 | |
| HB214 | |
| HB334 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 214 | TELECONFERENCED | |
| + | HB 286 | TELECONFERENCED | |
| + | HB 334 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 205 | TELECONFERENCED | |
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receiving an Alaska license if their privileges have been
revoked in another state; raises commercial fishing violation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.]