Legislature(2017 - 2018)GRUENBERG 120
03/22/2017 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB42 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 42 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 42-FORFEITURE & SEIZURE: PROCEDURE; LIMITS
1:05:00 PM
CHAIR CLAMAN announced that the only order of business would be
HOUSE BILL NO. 42, "An Act relating to seizure of property;
relating to forfeiture to the state; relating to criminal law;
amending Rules 3, 4, 11, 12, 16, 32, 32.2, 32.3, 39, 39.1, and
42, Alaska Rules of Criminal Procedure, Rules 501, 801, and 803,
Alaska Rules of Evidence, and Rules 202, 209, and 217, Alaska
Rules of Appellate Procedure; and providing for an effective
date."
CHAIR CLAMAN reported that the United Fishermen of Alaska
submitted a letter of support, dated 3/1/2017, directed to
Chairman Matt Claman. He related that the United Fishman of
Alaska subsequently asked that the letter be withdrawn due to
errors and misconceptions contained within that letter.
1:06:14 PM
REPRESENTATIVE KREISS-TOMKINS moved to adopt CSHB 42, Version
30-LS0193\U, as the working document. There being no objection,
Version U was before the committee.
1:07:01 PM
JOHN SKIDMORE, Director, Legal Services Section, Criminal
Division, Department of Law (DOL), offered that Version U
addresses the concerns of the Department of Law (DOL) and
provides clarity to the law.
MR. SKIDMORE explained that Sections 1-7, are conforming
amendments that point back to the new procedures being codified
for forfeiture procedures, of which will be discussed in Secs. 8
and 10.
MR. SKIDMORE referred to Sec. 8, and advised that it adds the
following statutes: AS 12.35.200, 12.35.210, and 12.35.220.
Continuing, he explained that AS 12.35.200 codifies protections
for property by requiring a court order to seize property
subject to forfeiture, as opposed to simply evidence in the
case. The procedures put in place for the court order requires
appropriate probable cause in order to believe that the property
to be seized was in fact subject to forfeiture. He explained
that the only way it would not require a court order was if the
property was seized incident to a lawful arrest, if there was a
previous judgement for that property, or if there was concern
the property was subject to destruction.
1:09:45 PM
MR. SKIDMORE explained that AS 12.35.210 requires that the
property be kept by the custodian for the law enforcement agency
seizing the property in a manner that protects its value. In
the event the property was ultimately returned to the person
from whom it was taken, it would still be worth the same value
as at the time it was seized.
MR. SKIDMORE advised that AS 12.35.220 allows the owner of
seized property to request return of the property under certain
conditions, such that the person is able to prove they are the
lawful owner, the property is not subject to forfeiture, and it
is not illegal to possess. The only way in which it would not
be returned was if it was needed for evidence in addition to
being subject to forfeiture, he said.
1:10:47 PM
MR. SKIDMORE referred to Section 9, page 5, and advised it
amends AS 12.36.020(a) which discusses the return of property,
it previously existed in statute. He explained that this bill
amends to add a couple of references to other statutes, AS
12.35.220 previously discussed and AS 12.36.320 would be
discussed momentarily.
1:11:28 PM
MR. SKIDMORE referred to Section 10, page 6, and advised it adds
six new statutes: [AS 12.36.300, 12.36.310, 12.36.320,
12.36.340, and 12.36.350]. AS 12.36.300(a) lays out which
property is subject for forfeiture after conviction of an
offense, and it increases the burden to clear and convincing
evidence from preponderance of the evidence. AS 12.36.300(b)
requires that the property be acquired through the commission of
the offense, or directly traceable to property acquired through
the commission of the offense, or it was an instrumentality used
in the offense.
AS 12.36.300(c) read that property is subject to forfeiture if
it is illegal to possess. AS 12.36.300(d) read that a plea
agreement can forfeit property as well. AS 12.36.300(e) refers
back to the change in the law last year that civil in rem
proceedings should not be used instead of a criminal
prosecution, and clarifies that this is only meant to apply in
criminal matters and does not apply to other civil matters.
1:13:13 PM
MR. SKIDMORE referred to AS 12.36.310, and advised that it
originally listed all of the other statutes that authorized the
seizure and forfeiture of property, and advised that this
statute could be eliminated. He explained that to have it
authorized here in AS 12.26.310 and in another place, the
criminal division did not want to be in a situation now where it
missed one statute, and in the future if legislatures were to
decide it wanted to authorize forfeiture in a particular place,
or eliminate the ability to forfeit property in a particular
place, the criminal division did not want to have to go to two
different places in order to do that, so this statute itself
could be eliminated.
MR. SKIDMORE referred to AS 12.36.320, and noted the remission
statute was added in Sec. 9, and explained that the remission
statute discusses the return of property to innocent third
parties. Remission means that forfeiture is forgiven, it comes
from a U.S. Supreme Court case in the 1800s. He explained that
remission says, if there is an innocent third party, which is
someone with a legal right, title, or interest in the property
they acquired in good faith, did not participate in the crime,
didn't know the property would be used in the crime, and are a
bone fide purchaser of that property for fair value, they are
able to have the property returned to them. He noted that AS
12.36.320 uses the exact language as in AS 12.36.050, that
solely discusses firearms. He explained that this remission
statute, using the same procedure found in AS 12.36.050, expands
it to all properties, and offered that in the event the
committee preferred, AS 12.36.050 could be eliminated.
1:15:40 PM
MR. SKIDMORE referred to AS 12.36.320, and advised that it
provides that the claim for remission must be filed within 120
days, the same as AS 12.36.050, and it also allows for the
property to be bonded out.
1:15:56 PM
MR. SKIDMORE referred to AS 12.36.330, and advised that the
state is authorized to seek forfeiture of substitute property if
the property subject to forfeiture is unavailable for some
reason. It limits the substitute property in being the same
value as the property originally forfeited, he said.
MR. SKIDMORE referred to AS 12.36.340, regarding disposition of
property requiring that within 30 days of criminal charges being
declined, the property is to be returned to its rightful owner.
He acknowledged that it does not specify all charges, but that
is the appropriate reading of this statute in that it would
require all charges to be disposed of either through
declination, acquittal, or dismissal, of criminal charges.
MR. SKIDMORE referred to AS 12.36.350, and noted that an annual
report is required by law enforcement to provide others a sense
of what property had been seized within the state and forfeited
in a particular calendar year.
1:17:58 PM
MR. SKIDMORE explained that Secs. 11-19 are conforming
amendments to currently existing statutes in which forfeiture
was authorized for a particular type of case. He explained that
each of those amendments simply point an individual back to the
procedures in AS 12.35.200 - 12.35.220 and 12.36.300 -
12.36.350.
MR. SKIDMORE referred to Sec. 20, and explained that it gives
the Court of Appeals appellate jurisdiction over forfeiture
proceedings, which is appropriate because the Court of Appeals
deals solely with criminal cases.
MR. SKIDMORE explained that Section 21, deals with appeals in a
slightly different manner in that it allows a party to appeal a
judgment of the district court to the superior court in a
forfeiture proceeding.
1:18:58 PM
MR. SKIDMORE pointed to Secs. 22-28, and explained these
sections make conforming amendments for forfeiture, AS 12.35.200
- 12.35.220 and AS 12.36.300 - 12.36.350. These amendments
simply direct folks back to the statutes previously discussed
which say that forfeiture is authorized for those types of
cases, he said.
1:19:27 PM
MR. SKIDMORE referred to Sec. 29, and advised that it read that
the Act applies to forfeitures occurring on or after the
effective date to avoid confusion to cases currently moving
through the court system.
MR. SKIDMORE advised that Sec. 30 provides an effective date [of
July 1, 2017].
1:19:58 PM
REPRESENTATIVE KOPP referred to Version U, page 5, lines 8-10,
which read as follows:
(c) The court may order the return of seized
property subject to forfeiture upon finding that the
item has no evidentiary value and establishing that
the property owner has posted a secured monetary bond
equal to the fair market value of the property.
REPRESENTATIVE KOPP asked Mr. Skidmore to imagine a situation
wherein a court decided that [an item] did have evidentiary
value," but the person seeking return of the property was able
to provide satisfaction to the court that the item would be kept
in storage, photographs taken, or a promise not to transfer,
sell, or otherwise lose track of the property. He said he was
thinking of heavy equipment as a result of a DUI accident
involving a drilling rig, and so "you have a lot of equipment
maybe that's part of that rig tied up in a yard somewhere," and
the court could decide that the agency could release it upon
certain conditions and that it does have evidentiary value and
put stipulations on that.
REPRESENTATIVE KOPP paraphrased AS 12.36.070, Return of property
by hearing, as follows: "The court would say that the property
-- the court may impose reasonable conditions upon the return of
the property to the owner that they have to, you know, keep it
in some condition, take photos, or et cetra," and related that
there is a good example of that in the law. The way this is
written, it seems like it is saying that "the court has to find
that it has no evidentiary value when ... a literal reading of
that, the court may say, 'Well, it does have evidentiary value
so I'm -- I'm sorry ... even with proper conditions, I can't
turn it back over.'" He asked whether Mr. Skidmore read it in
the same manner.
1:22:50 PM
MR. SKIDMORE said he was looking at AS 12.36.070, and the
initial part of the statute does talk about whether or not there
is evidentiary value to the property that a victim wants
returned, and it would not allow the return of that. Although,
he pointed out, subsection (d) is possibly what Representative
Kopp was referring to and paraphrased "if the court orders the
return of the property to the crime victim the court may impose
reasonable conditions on the return. Those conditions may
include that the crime victim retains, stores the property so
that the property is available for future court hearings." He
explained that the issue presented in that scenario is ensuring
that the evidence is available at a criminal trial, for either
the defense or the prosecution, if it is important in that
trial. The evidentiary value would need to be preserved so that
in returning it to [its rightful owner] there needs to be an
assurance that if it is returned, the evidentiary value is
preserved and not compromised by returning it.
1:24:07 PM
MR. SKIDMORE advised that in reading this subsection, he opined
that Representative Kopp's question was, would that be possible.
Mr. Skidmore explained that his interpretation was that if the
court made arrangements to preserve that evidentiary value,
whether through photographs or some other manner, the property
could be returned. Although, he said, if the evidentiary value
cannot be preserved, the property should not be returned. The
manner in which this statute was drafted does not conflict with
Representative Kopp's concern, he advised.
1:24:58 PM
REPRESENTATIVE KOPP referred to that section, and noted it
appears to be asking the court to make a finding that the item
has no evidentiary value. The language he was just proposing
there, he explained, is that the court is able to look at a
preponderance of the evidence that the property must be retained
by the agency for evidentiary purposes or otherwise impose
reasonable conditions to preserve the property. He said that as
long as the committee is dealing with this draft, it is
something that could be caught now to make sure it's not a
problem for the court later on.
1:25:49 PM
CHAIR CLAMAN referred to Sec. 8, AS 35.200(c), page 4, lines 11-
12, and noted this may be an area in which to propose an
amendment on Monday.
1:26:17 PM
REPRESENTATIVE KOPP referred to AS 12.36.320(a)(4), page 7, line
5, which read as follows:
(4) was a bona fide purchaser for fair
value.
REPRESENTATIVE KOPP offered that it adds a qualifier for those
who would be able to receive remission of property, and the
fourth qualification is a bone fide purchaser for fair value.
He asked Mr. Skidmore that if a person had received property as
a gift or inheritance whether paragraph (1) covers that
scenario, page 6, lines 30-31, which read as follows:
(1) holds a legal right, title, or interest
in the property seized, acquired in good faith;
1:27:02 PM
MR. SKIDMORE advised that in speaking about property being
transferred as a gift or inheritance, the question is whether it
was gifted or left to someone in inheritance to avoid the
forfeiture. Paragraph (1) read "... acquired in good faith,"
and if it is inherited or gifted in good faith and not to avoid
the forfeiture, then there is no problem. Although, for
example, in the event a defendant's daughter was gifted an
airplane to avoid forfeiture after the commission of a crime [is
not in good faith]. He related that it is fact driven, and
opined that Representative Kopp's concern is addressed by
paragraph (1), on page 6.
1:28:37 PM
REPRESENTATIVE LEDOUX said that she understands Mr. Skidmore's
good faith response in terms of a gift, but she was unsure she
understood it in terms of an inheritance wherein someone has to
die. She asked whether that means if they make out their will
prior to being indicted the devisee inherits the property and
everything is good. On the other hand, if the will is signed
after that indictment, that is not good.
MR. SKIDMORE clarified that in an inheritance situation this
issue is exceedingly rare because it would require someone to
die and they would have had to give the property to someone else
to avoid it from having been forfeited. Generally, he
commented, if someone died prior to the conviction, the case is
dismissed because the criminal division does not prosecute
people who are dead.
1:30:29 PM
REPRESENTATIVE LEDOUX humorously asked whether he was absolutely
firm that the criminal division doesn't prosecute people that
are dead.
MR. SKIDMORE responded that in his 20 years of experience, that
decision is "pretty firm."
1:30:43 PM
CHAIR CLAMAN related his understanding that if a person was
convicted of a criminal offense and their appeal was pending,
and during the pendency of the appeal they died, then the
conviction would be dismissed as well.
MR. SKIDMORE responded that is a possibility because when
discussing a case on appeal, the criminal division would look at
the issue being taken up on appeal as to whether or not that
issue would provide legal clarity and significance for the state
as a whole going forward. He said he was aware of cases wherein
the state abandoned the appeal after someone died, thereby,
undoing the conviction and undoing any forfeiture that had been
ordered. Although, he related, he could also conceive of
scenarios in which the state knew the person died and it
continued to pursue the appeal and not for sanctions against the
person who committed the crime, but rather to answer a question
of law. He pointed out that he could not imagine the state
seeking property if it was just trying to get clarification on a
point of law.
1:32:09 PM
REPRESENTATIVE LEDOUX, in response to Mr. Skidmore's answer,
said "suppose you wanted the property." She referred to the
Enron Corporation scandal and said she was pretty sure the man
was charged, convicted, appealed, and then died. His death had
some effect on either a civil case being pursued against him
hoping to receive his assets before the shareholders did, or it
may have been a criminal proceeding, she opined. She further
opined that the end result was supposed to have been forfeiture
of his assets and when he died everything went away. She asked
whether there would be cases in which the state would want to
proceed even if the person was dead due to assets.
1:33:56 PM
MR. SKIDMORE offered that this scenario was less as forfeiture
and more as restitution. He explained that the state would want
to proceed and would not abandon its pursuit of restitution for
defrauded victims. He added that once a person is deceased, the
state would seek to collect it from that person's estate. An
extra step could be taken to forfeit it to get it, but he
pointed out that is not necessary. There are ways within the
law to ensure that justice is achieved and restitution is
obtained, and the statute does not present a problem in either
direction for that, he remarked.
1:34:56 PM
REPRESENTATIVE FANSLER referred to AS 12.36.320(a)(1)(2)(3)(4),
page 6. Lines 27-31, and page 7, lines 1-5, which read as
follows:
(a) A person seeking remission of the person's
interest in property forfeited under AS 12.36.300 -
12.36.340 shall prove to the court by a preponderance
of the evidence that the person
(1) holds a legal right, title, or interest
in the property seized, acquired in good faith;
(2) did not knowingly participate in the
commission of the crime in which the property was
used;
(3) did not know or have reasonable cause to
believe that the property was used or would be used to
commit a crime; and
(4) was a bone fide purchaser for fair
value.
REPRESENTATIVE FANSLER then specifically referred to [page 7,
line 4], the word "and," and offered that it appears to indicate
a person must meet all four of the requirements.
MR. SKIDMORE agreed that the word "and" means that all four
conditions must be present. As to how to interpret a bone fide
purchaser for fair value, he explained that in the event he
purchased an item for fair value, then he paid someone else for
it. Although, when an item is given as a gift or inheritance, a
person cannot just give it to someone else to avoid the
forfeiture. It doesn't prevent an innocent third party from
seeking to have the forfeiture go through a remission and the
property is not forfeited if the person asking for it received
the property as a gift or through inheritance, he explained.
1:37:19 PM
CHAIR CLAMAN related a scenario of seeking return of his
grandfather's favorite pistol that had been given to him ten
years prior and he never paid a penny for it because his
grandfather bought it many years ago, but it was stolen from his
house. Now, he remarked, he is in court saying he wants his
pistol back and, he offered, that he could see the judge looking
at this currently drafted statute and deciding that Chair Claman
qualified under paragraphs (1)-(3), but not paragraph (4)
because he was not a bone fide purchaser and; therefore, the
judge would not order remission of this property. He related
that he was unsure whether the currently drafted language
addressed that.
1:38:36 PM
MR. SKIDMORE acknowledged that when it talks about the bone fide
purchaser, "I honestly can't tell you that we sat down and said
okay, what about inheritance what about gifts." He continued
that they were looking at transferring property in the
circumstances encountered in Alaska, which is people trying to
sell valuable items to avoid those items being forfeited when
used in a crime or acquired as the result of the crime they
committed. He explained that in order for Chair Claman's
grandfather's valuable pistol to have been forfeited, that
pistol had to have been used in the commission of a crime.
Under those circumstances, he opined that he did not think that
necessarily makes Chair Claman an innocent third party who
received it without any fault of his own. That pistol would
still be subject to forfeiture because it was used in a crime,
his grandfather knew it was used in a crime, and Chair Claman
didn't acquire that interest until sometime later. He related
that under those circumstances he was having difficulty
fathoming the various circumstances members have described and
exactly how it would play out. He said that the state's
interest in forfeiture is only to ensure that justice is done.
In the event there were circumstance in which the forfeiture
didn't pursue justice, then he said he doesn't see the state
pursuing it. He understands that the legislature is trying to
write the statute so it doesn't rely on the state's discretion,
and that policy call belongs to the committee, he reiterated.
1:40:29 PM
REPRESENTATIVE LEDOUX commented that if the legislature wanted
to rely totally on discretion, there probably wouldn't be the
remission portion at all, and that she does not feel comfortable
relying totally on discretion. She said she can't imagine
trying to meet the criteria before a judge when the person is
simply not a bone fide purchaser because the item was inherited.
1:41:22 PM
REPRESENTATIVE FANSLER referred to AS 12.36.320(a)(4), page 7,
line 5, [text previously provided], and asked whether there is a
legal definition of fair value. He offered the scenario of a
crafty person purchasing a nice antique pistol at a flea market
that is not even close to the price it should be, and asked how
to determine that fair value aspect.
MR. SKIDMORE responded that fair value, fair market value, is
the amount in which the property would change hands between a
willing buyer and seller. He continued that that is Black's Law
definition, the definition used in Alaska Statutes when
discussing the value of property, the same manner in which the
criminal division uses when assessing the element of a certain
value to determine whether a crime is a misdemeanor or a felony,
and the same manner in which Alaska courts would interpret fair
value.
1:42:59 PM
REPRESENTATIVE REINBOLD referred to AS 12.36.320(a), page 7,
lines 4-5, [text previously provided] and said that the word
"and" must include paragraph (4) as well. She offered to work
with people to add a friendly amendment that would read
"legitimate owner or bone fide purchaser of fair value." She
asked whether that suggestion would deal with Chair Claman and
Representative Fansler's concerns.
CHAIR CLAMAN answered that he predicts this is an area in which
an amendment would be drafted prior to Friday afternoon. There
is a general sense on the committee that when subsections (1),
(2), and (3) are satisfied and subsection (4) is not because the
person received an item by gift or inheritance, that the person
should have the same protections as the person who purchased it.
REPRESENTATIVE REINBOLD explained that her suggestion would be
"legitimate owner."
1:44:31 PM
REPRESENTATIVE KOPP opined that Representative Reinbold was onto
something and suggested that "or otherwise a legal recipient of
the property" would probably cover it. That way, he explained,
as long as the court found that the person was a "bone fide
purchaser for value, or otherwise a legal recipient of the
property" it should encompass every situation that would come
into play.
1:45:14 PM
REPRESENTATIVE LEDOUX noted that she had seen the phrase "fair
market value" in legal opinions, and that Mr. Skidmore
interpreted "fair value" to mean "fair market value." She asked
whether there was a nuance in drafting where "fair value" was
used as opposed to "fair market value."
MR. SKIDMORE explained that he wasn't the actual drafter, but
the terms "fair market value" and "fair value" are synonymous
for him. In the event the committee preferred using fair market
value, that was a policy decision it could make.
1:46:23 PM
CHAIR CLAMAN referred to AS 12.35.220(c), page 5, lines 8-10,
which read as follows:
(c) The court may order the return of seized
property subject to forfeiture upon finding that the
item has no evidentiary value and establishing that
the property owner has posted a secured monetary bond
equal to the fair market value of the property.
CHAIR CLAMAN noted that his reading of subsection (c), was that
after the court gets past the question of no evidentiary value,
that this statute, as currently drafted, appears to require the
court to order the posting of a monetary bond before returning
the seized property. He asked whether this language gives the
court any discretion about a monetary bond requirement.
MR. SKIDMORE responded that the only word within the statute
that he see providing that discretion is the third word on line
8, which is "may." The court may order return of the property
upon a finding of ... He said that he supposed it could be read
that the monetary bond wouldn't necessarily have to be posted,
but that is a policy call should the committee seek
clarification. The purpose of the bond in that circumstance, he
opined, is to say that this property doesn't have any
evidentiary value so it could be returned, although the property
itself could still be subject to forfeiture at the end of the
case. He explained that that is the purpose of the bond itself,
and it is less about the evidentiary value and more about
whether or not the property ultimately is forfeited at the
conclusion of the case.
1:48:21 PM
CHAIR CLAMAN referred to evidentiary value and said he could
envision a situation in which there was an agreement that a car
had evidentiary value, but the defendant was willing to waive
certain objections in exchange for getting the car back. In
that scenario, pictures would be taken so that even though the
car was not there, there would be more than enough pictures to
show the car without having to require that no evidentiary value
finding. He asked whether he was in the realm that Mr. Skidmore
could imagine, or was he missing something.
1:49:10 PM
MR. SKIDMORE answered that Chair Claman was absolutely within
the realm. For example, he said, many years ago he handled an
Anchorage drive-by homicide case where two vehicles were
involved and one vehicle drove off shooting at the other
vehicle. The vehicle in which the person was shot and killed
was held, there was a trial that resulted in a hung jury, and it
was re-tried sometime later. During the intervening time that
vehicle was reexamined and the bullet that actually went through
the deceased's head had not previously been located, and it was
located during the re-examination. He explained that that is
the sort of thing the criminal division is always concerned
about when looking at evidence seized, it wants to be certain
there is no evidentiary value when people ask for the return of
their property. In response to Chair Claman's example, he said,
"Yes, I can conceive of a situation in which that evidence would
be returned." It would be in the event there was a way to
ensure that any evidentiary value was preserved such that the
property no longer had the evidentiary value, but rather the
photographs or some other stipulation was now the evidentiary
value. He reiterated that it would be fact specific to any
given case.
1:50:42 PM
REPRESENTATIVE EASTMAN asked Mr. Skidmore to speak to the timing
of events, under Version U, where there was a determination of
no evidentiary value because there appears to be little value in
the state incurring the costs of storing the item. He asked,
once the judge determined the property would be release, the
amount of window space for someone to secure the bond and make
the request. He further asked whether the determination was
made prior to someone initiating a request for the property
returned.n
1:51:44 PM
MR. SKIDMORE said that he believed his question was, if property
was seized during an investigation, whether for forfeiture or
initially thought to be for evidence, if the state determined
there was no evidentiary value in the property, at what point
would the property be returned. He responded that if the
property was not subject to forfeiture and there was no
evidentiary value, he was unsure whether the state would
automatically release the property. He advised there is another
statute regarding property seized during an investigation, and
it cannot be removed from law enforcement's possession unless
there is a motion by the parties and the court ultimately
authorizes it. Take the example Chair Claman offered a moment
ago in the instance of that vehicle, and he offered the
following scenario: Say for whatever reason that vehicle had
some evidentiary value but the state decided it didn't have any
value and returned it to its rightful owner. The defense goes
to trial and advises the judge that it actually wanted that
property, yet the prosecution failed to preserve it and that it
had a duty to preserve it under case law. The defense then asks
for a Thorne [jury] instruction. Under Thorne v. Department of
Public Safety, State of Alaska, 774 P.2d 1326 (1989) the
decision was that the state failed to preserve property in its
possession; therefore, the defense was entitled to a jury
instruction advising of the failure to preserve that evidence,
and that the jury could then assume that the evidence was
beneficial to the defense.
1:53:47 PM
MR. SKIDMORE referred to the timeline question and explained
that the mechanism is that there has to be a motion with the
court before property seized in a criminal investigation is
released. The statute itself says that after the seizure
occurred, the party desiring return of the property will make a
motion at any time, and within 45 days of having made that
motion there has to be a hearing to decide it.
1:54:19 PM
REPRESENTATIVE EASTMAN referred to property with no evidentiary
value and remarked that certainly the state has an interest in
minimizing the amount of property it pays in storage fees. He
surmised that the criminal division would wait for the court to
take some action releasing the state from any obligation to hold
it, and asked whether anything would take place prior to that
court action.
MR. SKIDMORE responded that in the event the state realizes it
has property with no evidentiary value, it would file a motion,
the defense would then advise that it wants the property
preserved for use in the future, or the defense would not assert
a claim to the property and would not assert a claim that it has
some evidentiary value. After the court makes its
determination, the state would not be in the situation of the
Thorne [jury] instruction because Thorne could not be asserted
under those circumstances. Therefore, disposing of property
requires a motion from either the state or some other party, and
the court to ultimately rule on it.
1:56:09 PM
REPRESENTATIVE EASTMAN referred to the point in the process
where the court releases its interest and the state determines
there is no evidentiary value, and asked the timeline after that
point.
CHAIR CLAMAN pointed out that the court has no interest in the
property, the interest is with the state.
MR. SKIDMORE replied that he doesn't know that this bill puts a
timeline on returning the property. The only timeline in the
bill is found in the disposition of property subsection, AS
12.36.340, [page 7, lines 20-27], which is where charges are
declined, dismissed, or an acquittal on all charges, and in that
circumstance the property has to be returned within 30 days. He
reiterated that as to the determination of no evidentiary value
and release, he was unsure the bill specified a particular
timeframe. Obviously, he pointed out, the interest of the law
enforcement agency holding the property is to stop holding the
property as quickly as possible because it incurs costs for
storage.
[The committee treated public testimony as closed.]
[HB 42 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB042 Draft Proposed CS ver U 3.21.17.pdf |
HJUD 3/22/2017 1:00:00 PM HJUD 3/27/2017 1:00:00 PM |
HB 42 |
| HB042 Sectional Summary ver U 3.21.17.pdf |
HJUD 3/22/2017 1:00:00 PM HJUD 3/27/2017 1:00:00 PM |
HB 42 |
| HB042 Legal Services Memo-Draft Proposed CS ver U 3.21.17.pdf |
HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Sponsor Statement 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 DoL Amendments to ver D 2.20.17.pdf |
HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 ver D 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Sectional Analysis ver D 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Forfeiture Flow Chart 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Current AK Law Forfeiture Flow Chart 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Forbes Article 1.19.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Heritage Article 1.22.19.PDF |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document Letter of Support RHAK 1.22.17.pdf |
HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Letter NFIB 1.20.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Supporting Document-Letter of Support Brown 1.23.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note DCCED-AMCO 1.20.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note DCCED-CBPL 1.20.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note LAW-CRIM 1.21.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note DPS-AST 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |
| HB042 Fiscal Note JUD-ACS 1.22.17.pdf |
HJUD 1/23/2017 1:00:00 PM HJUD 3/1/2017 1:00:00 PM HJUD 3/22/2017 1:00:00 PM |
HB 42 |