Legislature(2001 - 2002)
02/13/2002 01:12 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 381 - FAILURE TO STOP FOR PEACE OFFICER Number 1396 CHAIR ROKEBERG announced that the last order of business would be HOUSE BILL NO. 381, "An Act relating to the crime of failure to stop at the direction of a peace officer; and providing for an effective date." Number 1364 HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg, House Judiciary Standing Committee, Alaska State Legislature, presented HB 381 on behalf of the committee. She explained that HB 381 would clarify exactly when a person can be charged with first-degree failure to stop at the direction of a police officer. She noted that currently, there are two degrees of this offense. Second-degree failure to stop occurs when the driver doesn't realize that there is police officer behind him/her and so fails to stop right away but then ultimately does stop. [First]-degree failure to stop occurs when the driver fails to stop and violates a traffic law - as defined in AS 28.15.261 - or commits another crime - as defined in AS 11.81.900. MS. NOBREGA said that the change proposed by HB 381 stipulates that the offense of first-degree failure to stop would occur when the driver fails to stop and violates AS 28.35.040, the reckless driving statute. She said that because the terms "traffic law" and "another crime" are so broad, there are a lot of people being charged with the crime of first-degree failure to stop just because they either went over the speed limit in the process of failing to stop, or committed some other minor crime such as not wearing a seat belt or [driving a] vehicle without [working] lights. She offered that the intent of this change is to clarify that first-degree failure to stop really requires something above and beyond a basic traffic law violation; it requires a violation of the reckless driving statute. REPRESENTATIVE BERKOWITZ surmised, then, that if an officer sees someone who is driving recklessly, which, he added, is oftentimes used as a lesser included offense for driving while intoxicated (DWI), and then fails to stop right away at the direction of a police officer, then that person is subject to a charge of felony eluding. Number 1201 MS. NOBREGA said that is correct because that person didn't stop. If that person had stopped right away, the charge would simply be misdemeanor reckless driving. She added that it becomes a felony because that person is committing two crimes: he/she is eluding and driving recklessly. REPRESENTATIVE BERKOWITZ asked how many of these types of cases were anticipated. CHAIR ROKEBERG noted that the committee packets contained statistical information. Referring to that information, he mentioned that in 1999, there were 75 charges; in 2000, there were 162 charges; and in 2001, there were 183 charges, not all of which have been adjudicated. REPRESENTATIVE BERKOWITZ noted that the [58] felony convictions in 2000, with an average one-year jail sentence at a cost of $30,000-$40,000 each, would have had a large fiscal impact. MS. NOBREGA, in response to questions, mentioned that HB 381 has a zero fiscal note from the Department of law. Number 1098 DEL SMITH, Deputy Commissioner, Office of the Commissioner, Department of Public Safety (DPS), said that he testified a couple of years ago on the bill that became the current felony eluding statute. He said that his recollection of his testimony was that the DPS would use that statute only for the most egregious circumstances, which he envisioned as occurring after a person was already committing the misdemeanor offense of eluding a police officer and then creating some public safety [hazard]. He acknowledged, however, that: It turns out, in looking at some of the cases that have evolved since then, that [the] common sense that I counted on has not carried through in each and every case. So I certainly agree that there is a problem, currently, with the application, as you can see from the escalating numbers ... in 2001. The convictions, I might point out, are substantially lower ... in 2001. But ... those cases can go up to 120 days out [for] trial or longer, so that's not complete. But the fact that there's 183 felony arrests for that - one every other day, basically - does concern me, and for that reason I wanted to be here to try to see what changes could be done that make some sense but still provide some public protection.... One other thing, if I could: ... there was some reference to seatbelt violations; that's not true. You have to [have] at least a moving [violation] under current law. REPRESENTATIVE BERKOWITZ asked for a hypothetical example. MR. SMITH recounted a situation in which a vehicle left the downtown area and the officer alleges in his police report that [when] he activated his emergency lights, the vehicle accelerated rapidly to ten miles an hour over the speed limit, made a left hand turn without a signal, ultimately stopped within a mile and a quarter, and the driver was charged with felony eluding. "I thought that was very inappropriate and [I] expressed that opinion." REPRESENTATIVE BERKOWITZ surmised, then, that the underlying offence was a driving violation. MR. SMITH said that in his professional opinion, he thought the maximum that individual should have received in that particular circumstance was perhaps a speeding ticket for going ten miles an hour over the speed limit, and perhaps a ticket for [failure to use] a left hand turn signal, but not even misdemeanor eluding. And while that charge has since been reduced, he noted, it was originally a felony arrest. He said that although he has not looked at every police report in the state, he is concerned that there are other similar cases. Number 0890 REPRESENTATIVE OGAN recalled a case in Kenai in which a person driving on a state road refused to pull over for a "federal fish and wildlife protection officer." This person was charged with felony eluding because he went ten miles over the speed limit and did not stop for the federal officer. MR. SMITH said that he recalled that case, which was ultimately dismissed, adding that he thought that that, too, was an improper application of the current statute. He mentioned that shortly after that case, the Department of Law issued its screening attorneys [a memorandum] on the proper application of that law. He reiterated that the charge of felony eluding is intended to apply in only the most egregious of circumstances. CHAIR ROKEBERG noted that a proposed amendment suggested by the Department of Law has been distributed to members. This proposed amendment [which was discussed but not adopted] reads [original punctuation provided]: Section 1. 28.35.182 (a) is amended to read: (a) A person commits the offense of failure to stop at the direction of a peace officer in the first degree if the person violates (b) of this section, and, during the commission of that offense (1) the person violates AS 28.35.040 [A TRAFFIC LAW OR COMMITS ANOTHER CRIME. IN THIS SUBSECTION, (1) "CRIME" HAS THE MEANING GIVEN IN AS 11.81.900; (2) "TRAFFIC LAW" HAS THE MEANING GIVEN IN AS 28.15.261]; (2) the person is subject to an arrest warrant issued by a federal, state, or local court; (3) as a result of the person's driving (A) an accident occurs; (B) any person suffers serious physical injury; or (C) any person, including a pedestrian or bicyclist, must take evasive action to prevent an accident or injury; (4) the person is committing vehicle theft; (5) the person is in possession of an unlawful controlled substance; or (6) the person is on probation or parole supervision for a felony offense. Number 0711 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), noted that she, too, was present during discussions of the legislation that became the current statute, adding that at the time, she thought that that legislation was too broad. She opined that it is a good idea to limit its application. She noted, however, that she is concerned that limiting it to reckless driving is going a little bit too far in the opposite direction, which is why the DOL is suggesting the aforementioned amendment that would include, in addition to reckless driving, other [circumstances] that often result in dangerous driving or bringing harm to people and property. MS. CARPENETI pointed out that in order for a person to commit first-degree eluding, he/she must first commit second-degree eluding, which is "knowingly" failing to stop rather than just not stopping. She mentioned that there have been occasions when she has driven for some time without noticing that a police officer has been signaling for her to stop. Those were not instances of eluding because "you have to know that somebody is trying to pull you over, and you have to ignore them and go on," she added. MS. CARPENETI explained that first-degree eluding, as proposed by the suggested amendment, involves knowing that a police officer is trying to pull "you" over, and, after ignoring the police officer, going on to commit the crime of reckless driving or doing several other things that the DOL thinks would give rise to dangerous conditions - for example, if a person ignores a police officer because he/she has an "arrest warrant out"; causes somebody to suffer serious physical injury as a result of the driving; is in the process of committing vehicle theft; is in possession of an unlawful controlled substance; or is on probation or parole supervision for a felony offense. She remarked that the DOL thinks the suggested amendment is a good compromise: it is somewhere in the middle between a moving violation and driving recklessly after ignoring a police officer. REPRESENTATIVE BERKOWITZ, referring to [paragraph] (2) of the suggested amendment, said that this language presumes that the person is aware that he/she is subject to an arrest warrant. He added that it seems to him that if the person is aware of the warrant, he/she would be subject to the terms of AS 11.56.700, which is resisting or interfering with arrest and which includes creating a substantial risk of physical injury to any person. Therefore, he said, it appears that [paragraph (2)] is duplicating an existing statute. Number 0447 MS. CARPENETI said that she understands resisting arrest under this circumstance to be more personal and not in the context of a vehicle, though she acknowledged that Representative Berkowitz makes a good point and she will consider it further. REPRESENTATIVE COGHILL, referring to [paragraph] (3)(C) of the suggested amendment, opined that this activity is already covered under the negligent driving statute, located in AS 28.35. MS. CARPENETI replied that when the DOL adopted its screening policy for felony eluding, one of the directions to the screening attorneys was that felony eluding should only apply to serious cases. She pointed out that the language in both HB 381 and the suggested amendment refers only to reckless driving - AS 28.35.040 - and does not include negligent driving. Therefore, while the concept of [paragraph] (3)(C) of the suggested amendment is included in the negligent driving statute, it does not encompass all aspects of negligent driving. In response to a question, she noted that while the crime of reckless driving is a misdemeanor, the crime of negligent driving is simply a violation. She added that reckless driving is "kind of a hybrid misdemeanor"; it involves a $1,000 fine, as is found for a class B misdemeanor, and a year of jail time, as is found for a class A misdemeanor. REPRESENTATIVE BERKOWITZ, on the topic of [paragraph (3)(C)] of the suggested amendment, said that it seems to him that this concept is also swept up in AS 11.41.250 - reckless endangerment - which involves creating a substantial risk of serious physical injury to another person and which, he opined, is underutilized. MS. CARPENETI acknowledged that that is an interesting argument because [reckless endangerment] requires the culpable mental state of reckless, whereas the concept of [paragraph (3)(C)] embodies negligent behavior. She added that in AS 28, negligent driving does not include a substantial risk; it merely refers to an [unjustifiable] risk that "constitutes a deviation from the standard of care that a reasonable person would observe in the situation." Therefore, it's a little bit different than the culpable mental states included in Representative Berkowitz's reference to reckless in AS 11, which involves a "substantial risk", knowing that something is a substantial risk, and then disregarding that risk, as opposed to negligent, which involves not understanding the risk. Number 0197 REPRESENTATIVE BERKOWITZ, referring to [paragraphs (4) and (5)], said that in a way, those items seem redundant and would merely provide "a way of bootstrapping" the crime of eluding into a felony. MS. CARPENETI noted that a person who has drugs in his/her vehicle is more apt to elude and cause harm to other people CHAIR ROKEBERG asked how the police officer, merely by following someone, would know that he/she was in possession of drugs. MR. SMITH surmised that first the person would have to be arrested for misdemeanor eluding, then, if drugs were found during the arrest, he/she would be charged with felony eluding. CHAIR ROKEBERG noted, however, that the person could be charged with other crimes and, thus, wouldn't need to be charged with felony eluding. MR. SMITH pointed out that the intention is to cut down on the number of people who decide that they need to try to get away, so that there are not people careening through the streets. I want them to pull over and say, "Fine, I've already got a warrant," or "I've got drugs in here, why don't I just go with that misdemeanor possession of marijuana as opposed to creating a felony here". Now that presumes, of course, that they pay attention to what the legislature has done in the way of passing laws, and [that] they know the law. TAPE 02-18, SIDE A Number 0001 MR. SMITH continued: "I guess I'm looking for ways that would persuade people that it's better to stop, take your medicine, and not create a problem." MS. CARPENETI indicated that in creating the suggested amendment, the DOL was trying to envision circumstances where people would behave in a dangerous way after they notice that they're being pulled over, and having drugs in the car or being subject to an arrest warrant are things that would probably cause people to go ahead and drive in a way that could be harmful to other people. REPRESENTATIVE BERKOWITZ mentioned that this is presuming a rational response in the criminal mind. CHAIR ROKEBERG noted that the suggested amendment is basically a laundry list, and if "the committee agrees with the concept of reckless as the base standard," then, if the committee wants to, it could add other items. REPRESENTATIVE JAMES opined that most of the people who are out there doing these dumb things don't have a clue what the penalties are; those people are merely being reactive. She suggested that the more "we try to tighten this down," the more it might create other problems. She indicated that she has an aversion to turning young people into felons early in their lives, that she did not want to entrap anybody, and that she wants to be cautious when going in "that direction." CHAIR ROKEBERG noted that he is comfortable with the reckless standard. He mentioned, however, that although he is not entirely opposed to the additional items proposed by the suggested amendment, he does have concerns about some of them, such as [paragraph (2)], which pertains to having an arrest warrant. REPRESENTATIVE BERKOWITZ posited that [providing for] officer safety and public safety are always at the forefront of what the legislature is trying to do. He added, however, that one of his concerns is that when [crimes] are escalated to felonies, it might, in a perverse way, encourage more flight, which creates more risk. He said: I would feel better able to help craft a bill if I understood what the dimensions of the problem were a little bit more. What kind of behavior, exactly, are we trying to stop that we're [currently] unable to stop, and what's going on out there that requires us to make these folks felons? Number 0310 MR. SMITH provided an example: Recently, the Alaska State Troopers received a report of a potential stolen vehicle located at the Palmer Correctional Center. When the trooper arrived, the vehicle was there and, ultimately, an 18-year-old woman who was from Anchorage jumped in the stolen vehicle and took off. When the troopers finally got her stopped after a 90-mile-an- hour chase toward Palmer, they discovered that she was subject to an arrest warrant, she was driving a stolen vehicle, she didn't have a driver's license, and she was driving recklessly. He added that many times when a person is finally pulled over after eluding, the police officer discovers that there is a warrant out on that person, or that it is a stolen vehicle, or that the person is in possession of a controlled substance. REPRESENTATIVE BERKOWITZ asked how would turning the crime of eluding into a felony have helped in the prosecution of that case. MR. SMITH acknowledged that that defendant is subject to felony charges anyway under the current law. REPRESENTATIVE BERKOWITZ pointed out that that woman is subject to "felony joy riding", a handful of misdemeanors, and the second felony for eluding, which means that if she ever does anything bad in the future, she is "presumptive third." CHAIR ROKEBERG asked if that example qualified as "three strikes." MR. SMITH said he did not think so in her case because she was only 18. MS. CARPENETI clarified that none of "these crimes" is one that would be considered under "three strikes and your out," which is only considered for what is defined as most serious felonies. REPRESENTATIVE BERKOWITZ mentioned that he would be comfortable prosecuting a reckless driving case as an assault when the defendant is truly driving recklessly. He added that if the community condemnation is out there, a prosecutor could get 12 people on a jury to agree with that charge. MS. CARPENETI noted that in terms of presumptive sentencing, these felonies would certainly count, but not for "three strikes and your out." Number 0516 MR. SMITH opined that it is no less a danger to be hurtling through city streets in a 4,000-pound vehicle than it is for a person to step outside of his/her downtown house and start shooting a rifle. Both behaviors endanger other people. He added that the original intention of the current statute was to keep people from eluding to begin with; however, that's not quite worked out as planned. REPRESENTATIVE BERKOWITZ asked why people who are wildly driving around aren't charged with a felony assault, as would be that case for someone who is wildly shooting a rifle in a downtown area. He said that it seems to him that the nub of the problem centers on a policy decision within the DOL as to how it is charging and prosecuting certain types of conduct. "The tools are in the tool box to go after people, and that's one of the reasons why we have broadly written laws, is so we can take it to a jury and see if the community agrees with that assessment," he opined. And, although there are clearly some changes that should be made to the current law, rather than giving up on the existing code and seeking an answer with some ephemeral statute, "it would be better to just use what we've got and start hammering people with it," he concluded. MR. SMITH opined that the DOL has exercised the right kind of discretion at the screening level; unfortunately, he added, people are being arrested as felons before the DOL can intervene. He added that a solution might be to forgo elevating a charge of misdemeanor eluding to a felony until after a decision is made by the district attorney at the screening level. He noted, however, that it might not be possible to place such a policy in statute, so there is the potential that it wouldn't be applied consistently. CHAIR ROKEBERG remarked that he is satisfied with HB 381 as is. Number 0773 REPRESENTATIVE JAMES moved to report HB 381 out of committee [with individual recommendations and the accompanying zero fiscal note]. There being no objection, HB 381 was reported from the House Judiciary Standing Committee.
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