Legislature(2015 - 2016)BELTZ 105 (TSBldg)
02/22/2016 01:30 PM JUDICIARY
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SB 123-USE OF ELECTRONIC DEVICES WHILE DRIVING 1:35:32 PM CHAIR MCGUIRE announced the consideration of SB 123. 1:36:12 PM SENATOR KEVIN MEYER, Alaska State Legislature, Juneau, Alaska, sponsor of SB 123, informed the members that the Anchorage Assembly recently passed an ordinance that does basically the same thing as the bill. He continued the introduction paraphrasing the following sponsor statement: SB 123 changes the penalty for driving while texting from a class A misdemeanor to a violation of up to $500, unless the action causes physical injury or death to another person. The more severe felony penalties for those offenses will remain unchanged. The reduction in penalty is intended to make prosecution of distracted drivers more expedient, in that law enforcement officers will be able to issue tickets immediately, rather than prosecute the individual through the court system. No other aspect of current law as summarized below is changed by this legislation. Except for emergency vehicles, operating an electronic screen device while driving is illegal when: 1. The vehicle is moving 2. The vehicle has a television, video monitor, or portable computer in full view of the driver and the monitor or visual display is operating while the person is driving. Exceptions to the law are: 1. Using cell phones or tablets for verbal communication or displaying caller ID 2. Using equipment that is displaying information such as audio/stereo, GPS and navigation devices, vehicle operation information, video equipment showing reversing/maneuvering (driving) operation 3. Utilizing vehicle dispatching and response information for emergency roadside assistance and passenger or freight package delivery 4. Using information being displayed to perform highway construction, maintenance, or repair or data acquisition by DOT/PF or a municipality 5. Emergency vehicles (police, fire or emergency medical service) are exempt from these prohibitions SENATOR MEYER posited that law enforcement will be more inclined to cite someone who is texting while driving if the penalty is a simple violation as opposed to a class A misdemeanor. He assured members that no other aspect of the existing law changes, including the penalty for texting that results in serious injury or death. He assured the members that the bill is not intended to be a revenue generator. It provides that an officer who witnesses an individual texting while driving can stop the car and issue a ticket immediately. The driver has the right to appeal the citation, but it would be in traffic court as opposed to criminal court. He noted the two zero fiscal notes and offered his belief that the bill would result in a savings to the state. 1:39:44 PM CHAIR MCGUIRE requested clarification on two points. First, it's still legal to use a cellphone while driving as long as the driver is using a hands-free device. Second, it's still permissible to use navigation devices such as GPS. SENATOR MEYER confirmed that the bill does not change existing law regarding cellphone use while driving or the use of navigational devices. He deferred further comment to his staff. 1:40:46 PM EDRA MORLEDGE, Staff, Senator Kevin Meyer, agreed that SB 123 only changes the aspect of current law related to texting while driving. SENATOR MICCICHE asked, if there is an accident, is there an easy way for law enforcement to know that the driver had pulled over to text? MS. MORLEDGE deferred to an agency to say how easy it would be to prove the vehicle was not in motion. CHAIR MCGUIRE stated support for the bill and expressed hope that future lawmakers would review the law to ensure there is no abuse of the authority and Alaskans' privacy rights are preserved. 1:43:34 PM SENATOR MICCICHE wondered if the sponsor considered approaching a safety organization to get the word out that texting will be illegal if the bill passes and becomes law. SENATOR MEYER said he hadn't thought of that since it is already illegal to text and he believes the word will get out after a few $500 fines are levied. He clarified that it is still legal to text while stopped at a red light. 1:45:18 PM SENATOR WIELECHOWSKI asked if a driver in Anchorage would be subject to both the municipal and state fine. MS. MORLEDGE related that the municipal attorney said it would be up to the investigating detective to determine whether to prosecute under the municipal or state law. SENATOR WIELECHOWSKI expressed interest in knowing for certain if drivers in Anchorage potentially would be subject to a $1,000 fine when the same infraction elsewhere in the state would be a $500 fine. CHAIR MCGUIRE asked Lt. Hanson if he could answer Senator Wielechowski's question. 1:46:47 PM LIEUTENANT DAVID HANSON, Deputy Commander, Alaska Bureau of Highway Patrol, Alaska State Troopers, Department of Public Safety (DPS), agreed that it would be at the discretion of the municipal officer to charge under either the municipal code or state statute. SENATOR WIELECHOWSKI asked if other communities have a texting while driving provision and a penalty similar to the one in Anchorage. LIEUTENANT HANSON said he didn't know what other municipalities are doing. CHAIR MCGUIRE suggested doing some research on that between now and the next hearing. SENATOR WIELECHOWSKI asked if there is a possibility of a plea bargain. MS. MORLEDGE offered to look into it. SENATOR MEYER clarified that the intent is to make this similar to a traffic ticket, but he didn't know if plea bargains are a possibility in that circumstance. 1:49:20 PM SENATOR WIELECHOWSKI suggested the committee make a policy call about whether it wants drivers in Anchorage subject to a $1,000 fine when the violation would be a $500 fine in other jurisdictions. SENATOR MEYER said the intent is that a driver would only be fined once, not under both the municipal and state codes. He committed to do what's needed to make sure that is clear. 1:50:09 PM SENATOR COGHILL noted that the bill says up to $500 and he wonders where that is in statute. SENATOR MEYER said he'd check on that. CHAIR MCGUIRE asked Ms. Schroeder to address the question of a double fine, and whether she reads the bill to allow flexibility in the fine. 1:51:02 PM KACI SCHROEDER, Assistant Attorney General, Office of the Attorney General, Department of Law (DOL), advised that there would be double jeopardy implications due to the Title 28 provision that requires municipal ordinances to be consistent with state law. Addressing the second question, she directed attention to AS 12.55.035 that states that a fine may be a range. Thus it could be negotiated. SENATOR WIELECHOWSKI asked if the police officer would make the decision about the fine. MS. SCHROEDER deferred to Lt. Hanson to explain the mechanics. LT. HANSON asked for the question to be restated. CHAIR MCGUIRE said Title 12 provides discretion within the range of a fine. Senator Wielechowski asked if the officer who issues the citation decides the dollar amount and if the amount of the fine or the citation itself are appealable. LT.HANSON said littering is the only offense he's aware of that provides a fine within a range. SENATOR WIELECHOWSKI asked for clarification that a trooper would write a citation for $500 if a person was stopped for texting while driving. He questioned if the court or prosecutor could then negotiate it down. LT. HANSON said his experience in traffic court is that the magistrate reduces the fine. He has never seen an instance where an officer or trooper would reduce the fine. 1:55:07 PM SENATOR WIELECHOWSKI wondered whether this might lead to more people going to court to fight their texting fines. LT. HANSON said his personal experience is that defendants do appear in traffic court to try to get their fine reduced. SENATOR MICCICHE asked the reason that just 110 citations have been issued since 2013. LT. HANSON said he can't speak to the municipal statistics, but from 2012-2015 DPS initiated 69 cases involving a driver who was texting, operating a screen device or otherwise distracted. Of those, 17 were charged under 13 AAC 02.495(c), which is the catchall regulation that addresses distracted drivers. The other 52 cases were charged under AS 28.35.161 that specifically speaks to prohibiting screen devices. He opined that troopers are less likely to charge a person with a class A misdemeanor due to the burden of proof requirement. Reducing the crime to a violation would likely result in a trooper being able to observe an offense and citing the driver to court. SENATOR MICCICHE asked if the department trains its troopers to use their screen devices with discretion and not as though they have an exemption. LT. HANSON confirmed that AST has clear policies governing the use of laptops in patrol vehicles to ensure that the law isn't violated. 2:00:57 PM SENATOR WIELECHOWSKI asked if the proposed change would give a trooper or the police the right to seize a person's cellphone. MS. SCHROEDER replied it's not likely to happen, but the Alaska Supreme Court has said that search warrants may be issued in circumstances of violations. SENATOR WIELECHOWSKI asked if the change from a misdemeanor to a violation affects what can be seized. MS. SCHROEDER explained that the Alaska Supreme Court has said that violations are quasi-criminal and most criminal procedures therefore apply. For a search, a judge could issue a warrant and seize evidence. SENATOR WIELECHOWSKI summarized that the change from a misdemeanor to a violation would not affect the procedure for search and seizure. A search warrant would be required. MS. SCHROEDER agreed. SENATOR WIELECHOWSKI asked how many times troopers have attempted to seize cellphones. MS. SCHROEDER said she didn't have the number, but in most of the misdemeanor cases the Department of Law has seen the defendants admitted they were texting while driving. SENATOR WIELECHOWSKI asked if the typical procedure is that the trooper requests the search warrant immediately as opposed to a few days later. MS. SCHROEDER replied it could be either way, but searching a cellphone is onerous so it could take time. She deferred further comment to Lt. Hanson. SENATOR WIELECHOWSKI asked Lt. Hanson to talk about the actual practice. LT. HANSON explained that troopers would first ask if they could take the phone. If consent was denied, it's likely that they would take the phone but not search it until a warrant was obtained. The process to apply for the warrant, go through the examination process and make arrangements to return the phone would take hours. He noted that if consent was given to take the phone and do a search, the person might not have a way to call and withdraw their consent. SENATOR WIELECHOWSKI asked how many times troopers have attempted to seize a phone. LT. HANSON replied he didn't know. SENATOR WIELECHOWSKI asked if it would be standard practice for a trooper to file for a search warrant if they suspected a person was texting while driving. LT.HANSON said he believes it is less likely that they would seize the phone and apply for a warrant under existing law. If the bill passes and the trooper is able to see the driver is texting it wouldn't be necessary to apply for a warrant. 2:06:26 PM SENATOR WIELECHOWSKI recalled U.S. Supreme Court case law that said that once a phone is seized, it could be searched for any type of information. He asked if that is accurate or practice. LT. HANSON indicated he didn't know the answer. MS. SCHROEDER advised that the Department of Law has to articulate what it is looking for when filing for the warrant. Trolling through all the apps on the phone would not be permitted unless that was the specified reason for the warrant. SENATOR WIELECHOWSKI emphasized that while someone who is texting while driving should be punished, he didn't believe the search should become a fishing expedition. He asked if the intent of the Department of Law would be to limit the searches to texting violations. MS. SCHROEDER replied she couldn't comment on the court case, but the Department of Law would look for what is in the warrant. CHAIR MCGUIRE requested she read the case before the next hearing and prepare to comment on it. SENATOR COGHILL suggested the Department of Law and the sponsor look at the way the Municipality of Anchorage handles the fine when it allows for a range from $1 to $500. He also questioned whether the statute should establish a specific fine for a texting violation. RICK ALLEN Director, Office of Public Advocacy, Department of Administration (DOA), Anchorage, Alaska, introduced himself and offered to answer questions. He added to the discussion about searching phones expressing doubt that law enforcement could successfully search an IPhone with passcodes, even with a warrant. 2:09:37 PM SENATOR COGHILL asked what incentive he would have to voluntarily give up his phone if he was stopped for texting while driving. "Do they have any right to look at that phone at that point?" MR. ALLEN advised that there would be no incentive for a driver to give up their phone if they knew they were texting while driving. He added his belief that if it's a violation, it would be unlikely that an officer would pursue a warrant to ascertain the time a text was sent unless an accident caused serious injury or death. SENATOR COGHILL offered that it's appropriate to change the penalty to a violation if the misdemeanor isn't working. 2:11:55 PM CHAIR MCGUIRE closed public testimony on SB 123 and held the bill in committee.