Legislature(2015 - 2016)BELTZ 105 (TSBldg)
04/04/2016 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SJR12 | |
| SB164 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SJR 12 | TELECONFERENCED | |
| + | SB 164 | TELECONFERENCED | |
| + | SB 108 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 164-FISH & GAME: OFFENSES; LICENSES; PENALTIES
2:24:28 PM
CHAIR MCGUIRE announced the consideration of SB 164.
2:24:30 PM
SENATOR COGHILL moved to adopt the CS for SB 164, labeled 29-
GS2958\H, as the working document.
CHAIR MCGUIRE announced that without objection, version H is
before the committee.
2:25:01 PM
KEVIN BROOKS, Deputy Commissioner, Alaska Department of Fish and
Game (ADF&G), noted that the four members present heard SB 164
in the Senate Resources Committee. He explained that the purpose
of the legislation is to provide Alaska Wildlife Troopers with
the authority to issue correctable citations. The bill would
prohibit a person from receiving a sport fishing, hunting, or
trapping license in Alaska if their privileges had been
suspended or revoked in another state. The bill also increases
restitution for animals harvested illegally, standardizes
penalties for offenses, and provides an additional tool for
Alaska Wildlife Troopers to charge some wildlife, fisheries, and
habitat offenses as violations. Finally, the bill also allows
the display of a license in an electronic format.
He reviewed the following changes between the original, version
A, and the current, version H, for SB 164:
1) Page 1, line 5 adds a semicolon to the title
creating an exemption from payment of restitution for
certain unlawful takings of big game animals.
2) Page 2, section 3, line 21 removes the words "tag
or permit" from an item that can be correctable, and
removes reference to the Court. An individual can
correct a violation at a Department of Public Safety
office.
3) Page 5, section 17, line 6 adds language "and c of
this section" to address changes in section 18 of this
bill.
4) Page 5, section 17 lines 14-25 changes restitution
amounts that the court may apply if the court feels it
is appropriate. These increases represent the value of
the illegally taken resource to the citizens of
Alaska.
5) Page 5, line 26 deleted section 17 of the original
bill which was redundant with section 15 of the
original bill.
6) Page 5, section 18, lines 26-31 creates a new
section that provides that a court may not order
restitution under section 17 of this bill in a case
where a defendant voluntarily turns themselves in and
is charged with a violation offence. It also provides
that a person must voluntarily and immediately report
to ADFG or DPS a violation that they committed to
qualify for this affirmative defense.
7) Page 6, section 24, line 21-22 was a drafting error
that was corrected to reflect the correct statute
number.
8) Page 7, line 7, delete section 27 of the original
bill related to Court Rule 5(a)(4).
2:27:53 PM
VICE CHAIR COGHILL asked Major Chastain if he had anything to
add related to the changes in version H.
2:28:08 PM
MAJOR BERNARD CHASTAIN, Deputy Director, Alaska Wildlife
Troopers, Department of Public Safety (DPS), said the
substantive changes occur in Section 18. He offered to address
those issues and discuss the goal of adding that language.
VICE CHAIR COGHILL asked him to discuss the new language in
Section 18, the idea of Court Rule 5(a)(4) for correctable
citations going directly to DPS, and how the fines will be
implemented.
MAJOR CHASTAIN explained that Sections 1 and 3 provide that a
trooper or law enforcement officer who is charged specifically
with enforcing fish and game laws regarding licenses may issue
an official correctable citation in instances where a person
forgot their license in their vehicle or at home. They will then
have 30 days to bring their license to any office of the issuing
agency to show proof of licensure. The citation is corrected and
is not part of the person's record.
Section 18 relates to self-report violations. It adds language
that states the person must voluntarily and immediately report
the taking to the department and surrender all salvaged portions
of the animal. In those instances, the court is prohibited from
applying the restitution amounts listed in Section 17. The
individual is only fined for the offense.
2:33:15 PM
SENATOR WIELECHOWSKI returned to Section 3 and asked if a person
who received a citation can mail or email proof of their
licensure.
MAJOR CHASTAIN replied the process in place for all correctable
citations is that the individual must bring the citation in
person to any office of the arresting or citing agency.
SENATOR WIELECHOWSKI commented that this likely will be
burdensome for some people living in rural Alaska. He asked if
it would be "a big deal" to allow the individual to mail or
email the proof.
MAJOR CHASTAIN said the current process requires the citation
itself to be officially stamped; that tells the court that the
citation has been officially corrected and to pursue no action.
SENATOR WIELECHOWSKI wondered if there couldn't be a way to use
technology to make the process less burdensome. He asked the
administration to take another look to see if that isn't
possible.
MAJOR CHASTAIN said there is likely a way for all correctable
citations to be addressed either through the mail or an
electronic check-off, but that process isn't in place at this
point.
2:36:34 PM
SENATOR MICCICHE directed attention to page 2, line 3, and
recalled discussion in the previous committee was that the
reference in paragraph (1) would be sport of personal use
fishing. Version H only references sport fishing.
MAJOR CHASTAIN said personal use isn't included in that section.
As previously discussed, a personal use permit must be in the
individual's possession at the time of the take. There are also
recording requirements on the permit before leaving the fishing
site. Those are separate violations and the intent was not to
make those a correctable citation.
SENATOR MICCICHE offered his understanding that Section 1 is not
about correctable citations.
MAJOR CHASTAIN explained that Section 1 is the vehicle for the
correctable citation in Section 3.
VICE CHAIR COGHILL asked if Section 18 can be implemented with
the existing language.
MAJOR CHASTAIN said DPS believes, in consultation with the
Department of Law, that the language will prohibit a judge from
imposing restitution when a person voluntarily turns him/herself
in.
SENATOR MICCICHE noted that Section 18 is about self-reporting
for game but not fish even though that was part of the
discussion in the previous committee. He questioned how the
department would handle a fisher being over the line due to an
equipment breakdown in a commercial fishery. His preference is
that the fisher would notify the department they were over the
line and harvest the fish as opposed to cutting the gear. He
noted this an area of fines rather than restitution.
MAJOR CHASTAIN said he isn't aware of a self-reported commercial
fishing violation other than when someone calls to report a
mechanical failure. In those situations, the fisherman is
treated as fairly as possible. There is no restitution for
commercial fishing in this area but if the fish are caught
illegally they're sold and the proceeds are held in an account
pending the disposition from the court.
SENATOR MICCICHE asked why sport fishing and commercial fishing
aren't included under Section 18. He clarified that for
commercial fishing he is only talking about a first offense.
MAJOR CHASTAIN said the short answer is that there are no
restitution amounts in sport fishing or commercial fishing. In a
typical case of being over the limit in sport fishing, the bail
schedule provides a flat fine for the offense and an additional
amount for each fish taken illegally.
SENATOR MICCICHE commented on the importance of encouraging the
best behavior.
MAJOR CHASTAIN said this could be more clear, but he didn't
doesn't know how that would look.
2:47:38 PM
SENATOR WIELECHOWSKI asked if the salvaged portions of the
animal discussed in Section 18 include bear paws and bear gall
bladders.
MAJOR CHASTAIN replied it is all parts of the animal and if an
investigation indicated the parts were being sold, the
individual would not be immune from restitution.
SENATOR WIELECHOWSKI asked if there is a problem in Alaska with
trafficking animal parts, because he isn't sure the language
provides adequate protection from that.
MAJOR CHASTAIN said other areas of regulation and statute
require salvage of all game meat and applicable parts, and he
feels very comfortable that together they provide adequate
protection. With regard to trafficking bear parts, he said the
problem isn't as bad as it was in the 1990s.
2:50:43 PM
SENATOR MICCICHE mentioned the 50-inch challenge and expressed
concern that Section 18 doesn't impose a first-time or once-in-
five-years limit. Without that, it eliminates the incentive for
a hunter to be extra careful.
MAJOR CHASTAIN agreed that there was a lot of discussion about
that issue in particular, and it came down to giving the
troopers or the citing agency flexibility in charging because
every situation is different. He explained that violation
offenses are typically charged on a first time occurrence only,
but it's at the discretion of the district attorney's office or
the charging agency because there are many reasons a first
offense shouldn't be charged as a violation. One example is a
call or multiple calls from people who are watching a violation
occur. That scenario is a call for service meaning that the
troopers would investigate and make a determination about
whether or not the person intended to turn him/herself in. The
language is vague to allow the needed flexibility.
SENATOR MICCICHE read the language in Section 17 on page 5, line
12, and in Section 18 on page 5, line 27, and asked if there is
another way to charge the illegal taking of an animal other than
a violation.
MAJOR CHASTAIN explained that all these crimes default to a
misdemeanor offense; 5 AAC 92 and associated regulations provide
the ability to charge those crimes as violations. Whenever
someone self-reports, they are charged with a violation offense
instead of a misdemeanor. That fine is $500. The language on
page 5, line 12, comes from the part of statute dealing with
misdemeanor offenses so the court may order up to the amounts
listed on page 5, lines 14-25, in restitution for misdemeanor
offenses. Section 18 says that when the offense is charged as a
violation, the court cannot impose restitution.
SENATOR WIELECHOWSKI said he shares Senator Micciche's concern
with Section 18 because he reads the language as mandatory, not
discretionary. Should the bill pass as currently drafted,
individuals who are now being extremely careful may decide to
take a change because they'll get a free shot if they self-
report. The language "voluntarily and immediately reported" is
also concerning because that could be days later depending on
how remote the hunting location happens to be. He pointed out
that someone could wait until they were close to their house and
then decide not to report after all and instead opt to keep that
undersized moose.
MAJOR CHASTAIN said it's important to remember that the charging
agency and the district attorney's office have the discretion to
decide when to charge as a violation. He deferred further
comment to Mr. Peterson.
2:57:30 PM
AARON PETERSON, Assistant District Attorney, Criminal Division,
Department of Law, Anchorage, Alaska, said Section 18 is talking
about a case where a person voluntarily turns him/herself in and
the court being unable to issue an order to pay restitution.
However, if it's somebody who does this year after year or for
other reasons the Department of Law decided to treat it as a
misdemeanor, the potential fine is $10,000 per offense and loss
of hunting privileges for an extended period of time. These
penalties are much more substantial than restitution, although
restitution is important as evidenced by the numbers listed in
Section 17. To zero in on that alone misses the greater point
that somebody who decides to shoot a 30-inch moose and claim
they thought it was 50 inches, isn't going to get off. The
Department of Law takes this seriously and when an offense needs
to be treated as a misdemeanor it is.
MR. PETERSON pointed out that while the language "voluntarily
and immediately" is somewhat subjective, it is one of the many
places in criminal law where a determination has to be made.
SENATOR WIELECHOWSKI commented that he has a long-standing
concern about leaving too much discretion to prosecutors; that's
the job of the legislature.
SENATOR MICCICHE expressed increased satisfaction as a result of
the discussion. He summarized his understanding that the
prosecutor would be more likely to charge with a misdemeanor and
require restitution on a subsequent offense.
MAJOR CHASTAIN agreed with the summary and advised that it is
rare for a person who self-reports to violate a second time.
SENATOR MICCICHE said he's ready to let go of his concern about
the subjective use of prosecution with assurance that the
department "has been fairly pure in the prosecution of these
cases." He asked Major Chastain what his experience has been.
MAJOR CHASTAIN confirmed that the Wildlife Troopers statewide
work very closely with the district attorney offices. DPS has
policies and procedures in place and the troopers are well
informed on how to follow those policies and charge
appropriately with the district attorney's assistance.
3:04:59 PM
MR. BROOKS informed the committee that the restitution amounts
have been raised 50 percent and the companion bill in the House
raises some of those higher yet. The House Resources committee
thought the amounts ought to be higher to reflect the value of
the animals.
3:05:44 PM
CHAIR MCGUIRE stated she would hold SB 164 in committee.