Legislature(2015 - 2016)BELTZ 105 (TSBldg)

02/22/2016 01:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 123 Bills Previously Heard/Scheduled: TELECONFERENCED
Heard & Held
+= HB 93 PROBATION AND PAROLE: WORK, TRAVEL ACCOM. TELECONFERENCED
Moved SCS CSHB 93(JUD) Out of Committee
+ Bills Previously Heard/Scheduled: TELECONFERENCED
+= HB 83 REPEAL COLLECTION OF CIVIL LITIG. INFO TELECONFERENCED
Moved CSHB 83(JUD) Out of Committee
         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.                                                                                                              
                                                                                                                                

Document Name Date/Time Subjects
SB 123 ADN Article 11.15.15.pdf SJUD 2/22/2016 1:30:00 PM
SB 123
SB 123 AO 2015-126 Full Document.pdf SJUD 2/22/2016 1:30:00 PM
SB 123
SB 123 FiscalNote DOA.pdf SJUD 2/22/2016 1:30:00 PM
SB 123
SB 123 Hands Free Info Alaska Cell Phone Laws.pdf SJUD 2/22/2016 1:30:00 PM
SB 123
SB 123 NCSL Texting While Driving State Laws.pdf SJUD 2/22/2016 1:30:00 PM
SB 123
SB 123 Sponsor Statement.pdf SJUD 2/22/2016 1:30:00 PM
SB 123
SB 123 Texting While Driving Charges.pdf SJUD 2/22/2016 1:30:00 PM
SB 123
SB 123 Texting While Driving Penalties.pdf SJUD 2/22/2016 1:30:00 PM
SB 123
SB 123 Version A.pdf SJUD 2/22/2016 1:30:00 PM
SB 123
HB 83 Support Letter Schneider.msg SJUD 2/22/2016 1:30:00 PM
HB 83
HB 93 Version N.pdf SJUD 2/22/2016 1:30:00 PM
HB 93
HB 93 Version H - House State Affairs version.PDF SJUD 2/22/2016 1:30:00 PM
HB 93
HB 93 - Summary of Changes, Version N versus Version H.pdf SJUD 2/22/2016 1:30:00 PM
HB 93
HB 93 Backup Documents -- Stories on criminal justice reform, probation, and parole.pdf SJUD 2/22/2016 1:30:00 PM
HB 93
HB 93 Doug Gardner legal memo on HB 93 6 April 2015 with highlights.pdf SJUD 2/22/2016 1:30:00 PM
HB 93