Legislature(2009 - 2010)CAPITOL 120
03/17/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB386 | |
| HB287 | |
| HB409 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 287 | TELECONFERENCED | |
| + | HB 409 | TELECONFERENCED | |
| *+ | HB 386 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 386 - CITATIONS
1:08:43 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 386, "An Act establishing a uniform format and
procedure for citations for certain violations of state law;
relating to the form, issuance, and disposition of citations for
certain violations; relating to certain crimes and penalties for
noncompliance with citations; and providing for an effective
date."
1:08:59 PM
REPRESENTATIVE MIKE HAWKER, Alaska State Legislature, informed
the committee that HB 386, the "Ticket Simplification Act," was
crafted largely with the assistance and insistence of the
Department of Public Safety (DPS). This legislation, he
explained, provides DPS the authority to prescribe a uniform
citation format and process for moving citations forward. The
intent is to have much greater efficiency with the necessary
paperwork for the state's justice system and facilitate the
utilization of electronic records for which consistent format is
essential for processing.
1:11:30 PM
JULI LUCKY, Staff, Representative Mike Hawker, Alaska State
Legislature, relayed on behalf of the sponsor, Representative
Hawker, that the legislation has a lot of redundant language
throughout the 63 sections of HB 386. She directed the
committee's attention to a document entitled "HB 386 Uniform
Citations - Overview." She explained that Sections 21-31 of HB
386 encompass the uniform citation process and format. The
aforementioned sections outline the format of each citation,
clarify when an officer can issue a citation versus making an
arrest, and set standard and consistent deadlines for delivery
of citations to the court, answering citations when not required
to go to court, and what must be done with scheduled offenses.
Scheduled offenses are offenses for which one doesn't have to go
to court and for which there is a specific fine or bail
associated with the offense. These sections also outline
recordkeeping processes and have a consistent penalty for
failure to pay a fine or appear in court. Ms. Lucky noted that
the legislation is long because the various deadlines are
located in the [corresponding] statute. This legislation
consolidates those deadlines in this statute and references the
individual statutes to AS 12.25.175-12.25.230.
REPRESENTATIVE HOLMES recalled that the sponsor statement
relates the goal of allowing more fines to be paid through the
courts' online e-payment system. However, the language in the
legislation refers to mailing or personally delivering the fines
to the clerk of the court. She asked whether the language in HB
386 would allow payment online.
MS. LUCKY offered her understanding that since the language to
which Representative Holmes referred to is exists, it would
allow fines to be paid online. However, she suggested that
perhaps DPS staff could answer as she isn't familiar with the
process of payment.
1:14:58 PM
KATHERINE PETERSON, Lieutenant, Alaska State Troopers, Support
Services, Department of Public Safety, in response to
Representative Holmes, answered that citizens are already
allowed to pay fines online under the existing statutory
language that HB 386 uses. She added that the language of HB
386 allows the electronic transfer of information to the courts
in a more timely fashion. The aforementioned allows payment
online in a quicker and easier fashion. Currently, even if a
court is set up to allow online payments, there is delay because
the court hasn't received the citation or entered the citation
into its system.
REPRESENTATIVE HOLMES surmised then that the language she
referenced is used in statute and should allow online e-payments
without amending HB 386.
LIEUTENANT PETERSON confirmed that to be correct.
REPRESENTATIVE GATTO, referring to the language on page 7, asked
how the language "shall accept" the citation would be enforced.
1:17:05 PM
DAVID BROWER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), noted that
he helped draft HB 386. He explained that he didn't believe
that the proposed language change would matter because the same
individuals who won't accept the citation can't be forced to
sign the citation. He said he thought the language would
streamline the process as the [intent] of the legislation is to
make things occur quicker without signing. The language, he
explained further, would eliminate the necessity of having
certain offenses for which one has to sign and certain offenses
for which one doesn't have to sign. He noted that in another
section the language may allow the person [refusing the
citation] to be arrested.
REPRESENTATIVE GATTO surmised then that the final authority is
with the arresting officer who serves the citation. He said he
wasn't clear that the language of HB 386 says that those who
refuse the citation can be arrested.
MR. BROWER said that's already in Title 12. There are certain
offenses for which an officer doesn't have the authority to
arrest unless the individual refuses to identify himself/herself
or (indisc.). In further response to Representative Gatto, Mr.
Brower pointed out that if an officer is going to issue a
citation the officer has to have probable cause to believe the
offense occurred, which is the same with a driving under the
influence (DUI) charge. The officer, in a situation in which a
potential DUI offender refused the field sobriety tests, would
have to have enough articulable reasons to probable cause to
arrest without the field sobriety tests.
1:21:08 PM
REPRESENTATIVE HOLMES inquired as to the reasoning for replacing
the deleted language on page 6, lines 10-11, with "reasonably
believes".
MR. BROWER answered that the language change doesn't have any
practical difference. He opined that the deleted language, "has
reasonable and probable cause to believe", is redundant.
Probable cause is the language used when an officer makes a
determination to arrest someone for a particular crime; the
elements of the crime have to be met. In this case, [the
elements of the crime] are whether the individual is dangerous
or has committed a particular crime and there is already
probable cause for that crime. He said that the primary concern
of the officer at the time is whether the individual is a danger
to himself/herself or others.
REPRESENTATIVE GRUENBERG pointed out that the language on page
3, lines 13-14, which is new language, is essentially the same
as the language on page 3, lines 6-7. He asked whether a peace
officer with probable cause who boards a boat has the right to
search without a warrant for things in plain view.
MR. BROWER suggested that if the items are in plain view, then
the officer isn't searching.
REPRESENTATIVE GRUENBERG clarified then whether in such a
situation the office could seize items without a warrant.
MR. BROWER offered his belief that if the items are contraband,
the officer already has the right to seize the items. He
clarified that although the section has been repealed and
reenacted, the officer still has to have probable cause of a
violation prior to boarding the boat. The aforementioned, he
pointed out, isn't new. Certainly, if the officer is aboard the
boat and sees contraband in plain sight, the officer would be
able to seize it.
REPRESENTATIVE GRUENBERG related his understanding that per
Section 8, the officer will be able to board the craft simply
because the officer has probable cause to believe the violation
has occurred. He related his assumption that some of those
violations wouldn't necessarily have given the officer probable
cause to board the watercraft. Representative Gruenberg
expressed concern that the officer would be able to board the
watercraft and then things that wouldn't have otherwise been in
plain view would be in plain view and could be seized without a
search warrant.
REPRESENTATIVE GRUENBERG asked if under the current law and the
proposed law whether an officer would be able to seize things
that would be in view once the officer can legally board the
vessel. Therefore, would that allow the officer, under the
plain view doctrine, to seize items he/she couldn't have
otherwise seized without a warrant, he asked.
MR. BROWER offered his understanding that Section 8 doesn't
change existing law.
MS. LUCKY surmised that Representative Gruenberg's question is
whether, under current law, officers can board and seize.
REPRESENTATIVE GRUENBERG expressed concern that Section 8 would
give the officer a legal reason to board where none existed
before and without reference to probable cause. He offered to
obtain information on this matter from Legislative Legal
Services.
1:27:57 PM
REPRESENTATIVE GRUENBERG asked if the deleted language, "be in
writing" in Section 14, is a requirement that's found elsewhere
in HB 386.
MR. BROWER remarked that he couldn't conceive of a citation that
isn't in writing.
REPRESENTATIVE GRUENBERG asked whether, in AS 12.25.175-
12.25.230 there is a requirement that a citation be in writing.
If there isn't, then he opined that somewhere [statute] should
specify that citations must be in writing.
MR. BROWER remarked that a citation must contain certain things,
which would necessarily be in writing.
REPRESENTATIVE GRUENBERG requested that he be directed to the
page and line of such a requirement.
REPRESENTATIVE GRUENBERG referred to the language on page 4,
line 5, which is elsewhere in the legislation. The language
requires the department to deposit the citation and a copy with
the court on or before the 10th working day after the citation's
issuance. Representative Gruenberg expressed the desire that it
wouldn't be grounds for a motion for dismissal if the
aforementioned fails to be done in a timely fashion.
MS. LUCKY directed Representative Gruenberg to page 9, lines 21-
22.
MR. BROWER pointed out that the language on page 6, lines 30-31,
specifies that "the officer shall prepare a written citation and
issue it to the person".
1:31:17 PM
REPRESENTATIVE GATTO pointed out that on page 6, lines 10-11,
the language "has reasonable and probable cause to believe" has
been replaced with "reasonably believes". However, throughout
the legislation the language "probable cause" is used. He
questioned whether the language should be consistent throughout.
MR. BROWER explained that in any crime probable cause means that
the officer has probable cause to believe that every element has
occurred. Therefore, the language "probable cause" didn't seem
to fit the provision that addresses a situation in which the
officer believes the person is dangerous because there are no
elements.
REPRESENTATIVE HERRON, returning to the discussion of Section 14
and the deletion of the language "be in writing", related that
he reviewed the statute reference to AS 12.25.175-12.25.230 and
surmised that "written citation" means the same as "be in
writing".
MR. BROWER replied yes.
REPRESENTATIVE GRUENBERG opined that in Section 24 the language
", as repealed and reenacted by sec. 26, ch. 28, SLA 2000, and
by sec. 41, ch. 12, SLA 2006," could be deleted. He suggested
that such technical language could be deleted throughout the
legislation.
MS. LUCKY informed the committee that such language is found in
Sections 8 and 24. She then explained that the language is part
of the Boating Safety Act, which will be repealed and is why
there are two duplicative sections. Therefore, the Session Laws
of Alaska (SLA) must be edited because when sunsets occur the
previous statute takes the place of the new statute. In further
explanation, Ms. Lucky pointed out that Sections 8 and 24 have
different effective dates because they're conditional upon the
eventual sunset of the Boating Safety Act. If the Boating
Safety Act never sunsets, Sections 8 and 24 will never come into
play.
1:35:15 PM
REPRESENTATIVE GRUENBERG, referring to Section 21 on page 5,
expressed his desire that the citation form should be required
to be done by regulation under the Administrative Procedure Act
(APA). However, the language on page 5, line 30, uses the
language "may" rather than "shall". Without such a change, the
commissioner could simply decide to adopt standards and not do
it through regulation. He explained that the aforementioned
change would clarify that the form of the regulations must go
through the regular notice and public comment procedure for
adoption of regulations under APA.
MR. BROWER noted his agreement with Representative Gruenberg,
but added that he had no doubt that the DPS commissioner would
adopt regulations, which would be pursuant to AS 44.62. Since
citations affect the general public it will have to be a
regulation.
CHAIR RAMRAS surmised this had to do with migrating to an
electronic citation form. He inquired as to Lieutenant Dial's
thoughts regarding whether the language on page 5, line 30,
should be "may" or "shall".
1:37:26 PM
RODNEY DIAL, Lieutenant/Deputy Commander, A Detachment, Division
of Alaska State Troopers, Department of Public Safety, related
that at this time the department would prefer "may". However,
he said that the department wouldn't oppose changing the
language to "shall" because he believes the department would
adopt regulations anyway.
REPRESENTATIVE GRUENBERG opined that it's extremely important to
provide the opportunity for public comment on the form of the
regulations.
LIEUTENANT DIAL responded that he didn't see any reason why the
department wouldn't accept that proposed change.
CHAIR RAMRAS interjected that he prefers "may".
1:38:25 PM
REPRESENTATIVE HERRON asked if there is any other provision,
beyond that in Section 22, that replaces the language "has
reasonable and probable cause to believe" with "reasonably
believes".
MR. BROWER said that he would have to research that issue
further, but noted that something similar is in Title 47 for
mental commitments.
REPRESENTATIVE HERRON expressed concern and opined that he's not
convinced that [the proposed language] is the appropriate
approach.
REPRESENTATIVE GATTO, returning to the language on page 5, line
30, asked if the DPS commissioner, as a matter of course,
regularly adopts regulations under AS 44.62. If not, is there
an alternative, he asked.
MR. BROWER informed the committee that any commissioner,
commission, or board that adopts regulations does so under Title
44. He then pointed out that Section 21(b) says "The
commissioner of public safety shall provide or prescribe
citation forms for use by peace officers and other persons who
are authorized by law to issue citations." Currently, the
things required to be included in a citation are in statute in
court rule and DPS currently has a uniform citation that it uses
and is used by some other police agencies in the state. Mr.
Brower said that at this point he didn't know whether the
commissioner of DPS has adopted regulations regarding citations,
but reiterated that any regulations are adopted under AS 44.62.
REPRESENTATIVE GATTO asked if using "shall" would be a hindrance
such that there may be regulations that ought to be established
outside of AS 44.62.
MR. BROWER pointed out that Section 48 amends AS 44.41.020 such
that DPS "shall establish by regulation standardized forms for
citations ..." while under Section 21 similar language uses the
term "may".
REPRESENTATIVE GRUENBERG related his understanding that Section
21 only relates to the forms of the citation. He asked if
that's correct.
MS. LUCKY answered that she interpreted it that way as well.
REPRESENTATIVE GRUENBERG surmised, then, that Section 21(c)
might be read in conflict with Section 48. Since it's the
intent to require regulations under Section 48, he opined that
the "may" language on page 5, line 30, should be changed to
"shall" so as to avoid any conflict.
MS. LUCKY stated that she supported such a change.
CHAIR RAMRAS, upon determining no one else wished to testify,
closed public testimony.
1:44:30 PM
CHAIR RAMRAS made a motion to adopt Amendment 1, which read
[original punctuation provided]:
Page 2, lines 14, following "section.":
DELETE "The citation is considered a summons for a
failure to obey a citation under AS 12.25.230, and the
court may issue a bench warrant."
Page 2 line 29, through page 3, line 2: DELETE ALL
MATERIAL AND INSERT:
"* Sec. 6. AS 04.21.065(j) is repealed and reenacted
to read:
(j) A person cited under this section is guilty of
failure to obey a citation under AS 12.25.230 if the
person fails to pay the bail amount established under
(g) of this section or to appear in court as
required."
Page 10, following line 13
INSERT a new bill section to read:
"* Sec. 32. AS 16.05.165 (a) is amended to read:
(a) When a peace officer stops or contacts a person
concerning a violation of this title except AS 16.51
and AS 16.52 or of a regulation adopted under this
title except AS 16.51 and AS 16.52 that is a
misdemeanor, the peace officer may, in the officer's
discretion, issue a citation to the person as provided
in AS 12.25.175 - 12.25.230 [AS 12.25.180] .
RENUMBER following sections accordingly
Page 10, line 26 following "required."
DELETE "The citation is considered a summons for
failure to obey a citation under AS 12.25.230, and the
court may issue a bench warrant."
REPRESENTATIVE HOLMES objected for the purpose of discussion.
MS. LUCKY explained that Amendment 1 is basically clean up.
Amendment 1 inserts citations that were omitted and omits the
language "The citation is considered a summons for a failure to
obey a citation under AS 12.25.230, and the court may issue a
bench warrant." He requested that Mr. Brower speak to the
aforementioned language being deleted by Amendment 1.
1:45:30 PM
MR. BROWER explained that numerous existing statutes indicate
that an individual who was cited into court to either pay a fine
or attend court and did neither, the citation would be
considered a summons for a misdemeanor. However, he opined that
the language was meaningless. If the original citation was for
a violation, it couldn't revert to a misdemeanor. It's clear
that failure to obey a citation is a violation of AS 12.25.230,
he stated.
MS. LUCKY, in response to Representative Gruenberg, clarified
that the document [entitled "Amendments to HB 386 (26-LS1525\A)]
merely describes Amendment 1.
REPRESENTATIVE HOLMES withdrew her objection.
There being no further objection, Amendment 1 was adopted.
1:47:00 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2, as
follows:
Page 5, line 30;
Delete "may"
Insert "shall"
REPRESENTATIVE DAHLSTROM objected for discussion.
CHAIR RAMRAS then announced that without objection Amendment 2
was adopted.
1:47:30 PM
REPRESENTATIVE DAHLSTROM moved to report HB 386, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes.
REPRESENTATIVE HERRON objected, and reiterated concern that the
change on page 6, lines 10-11, could be utilized elsewhere. He
then removed his objection.
There being no further objection, CSHB 386(JUD) was reported
from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB386 Sponsor Statement.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 386 |
| 02 HB386 Bill v. A.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 386 |
| 03 HB386 Overview.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 386 |
| 04 HB386-LAW-CRIM-03-12-10.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 386 |
| 05 HB386 Amendments 2010 03 15.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 386 |
| 01 HB409(STA) Sponsor Statement v. S.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 02 HB409 HSTA CS v. S.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 03 HB409(STA) v. S Sectional Analysis.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 04 HB409 Legal Memo for CS 409(STA).pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 05 HB409 AG Legal Analysis.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 06 HB409-1-1-031210-ADM-Y.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 07 HB409 NCSL states respond to Supreme Court ruling.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 08 HB409 news stories and opinions.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 09 HB0409-1-1-031210-ADM-Y.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 10 HB409 AARP ltr of support.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 11 HB409 Explaination of changes.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 12 HB409 HJUD Amendment S.4.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 13 HB409 HJUD Amendment S.5.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 14 HB409 HJUD Amendment S.7.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 15 HB409 HJUD Conceptual Amendment.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |
| 16 HB409 HJUD Amendment S.2.pdf |
HJUD 3/17/2010 1:00:00 PM |
HB 409 |