Legislature(2019 - 2020)GRUENBERG 120
04/08/2019 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB98 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 98 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 8, 2019
1:34 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Gabrielle LeDoux, Vice Chair
Representative Chuck Kopp
Representative Louise Stutes
Representative Adam Wool
Representative Laddie Shaw
Representative David Eastman
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 98
"An Act relating to aggregation of crimes under theft in the
second degree; relating to fraudulent use of an access device;
and relating to the crime of possession of motor vehicle theft
tools."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 98
SHORT TITLE: PROPERTY CRIME; MOTOR VEHICLE THEFT TOOLS
SPONSOR(s): REPRESENTATIVE(s) CLAMAN
03/15/19 (H) READ THE FIRST TIME - REFERRALS
03/15/19 (H) STA, JUD
04/02/19 (H) STA AT 4:00 PM GRUENBERG 120
04/02/19 (H) Heard & Held
04/02/19 (H) MINUTE(STA)
04/04/19 (H) STA AT 3:00 PM GRUENBERG 120
04/04/19 (H) Moved CSHB 98(STA) Out of Committee
04/04/19 (H) MINUTE(STA)
04/05/19 (H) STA RPT CS(STA) 3DP 2NR
04/05/19 (H) DP: STORY, KREISS-TOMKINS, FIELDS
04/05/19 (H) NR: VANCE, WOOL
04/08/19 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
REPRESENTATIVE MATT CLAMAN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 98 as prime sponsor.
LIZZIE KUBITZ, Staff
Representative Matt Claman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented a sectional analysis of HB 98.
MICHELE LOGAN, Deputy Detective
Anchorage Police Department
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
98.
ACTION NARRATIVE
1:34:56 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:34 p.m. Representatives Eastman, LeDoux,
Stutes, Kopp, and Claman were present at the call to order.
Representatives Shaw and Wool arrived as the meeting was in
progress.
HB 98-PROPERTY CRIME; MOTOR VEHICLE THEFT TOOLS
1:35:35 PM
CHAIR CLAMAN announced that the only order of business would be
HOUSE BILL NO. 98 "An Act relating to aggregation of crimes
under theft in the second degree; relating to fraudulent use of
an access device; and relating to the crime of possession of
motor vehicle theft tools." [Before the committee was CSHB
98(STA), version 31-LS0626\U.]
CHAIR CLAMAN passed the gavel to Vice Chair LeDoux.
1:36:38 PM
CHAIR CLAMAN observed that Alaska is currently facing a number
of public safety challenges, including an opioid epidemic, cuts
to public safety resources, and a down economy with rising
unemployment rates. He opined that, given these challenges, it
is important to utilize public safety resources wisely and to
improve public safety. He said law enforcement officials in
Alaska have reported increased difficulty when arresting and
prosecuting serial theft offenders. He explained that HB 98,
which he introduced after discussing theft crimes with law
enforcement officials, would strengthen Alaska's laws related to
theft and other offenses against property. He said it would
also improve public safety by giving police officers and
prosecutors additional tools for arresting and prosecuting
criminals. He stated that the bill targets serial theft
offenders. He added that HB 98 is supported by the National
Insurance Crime Bureau, the Alaska Peace Officers Association,
and the National Federation of Independent Business.
1:37:52 PM
LIZZIE KUBITZ, Staff, Representative Matt Claman, Alaska State
Legislature, led a sectional analysis of HB 98. She paraphrased
from the document "Sectional Analysis Version U," included in
the committee packet, which read as follows [original
punctuation provided]:
Section 1
AS 11.46.130(a) - Theft in the second degree.
Allows prosecutors to aggregate crimes under theft in
the second degree if they occur within 180 days, the
amount is more than $750 and less than $25,000, and
the property or services are taken from commercial
establishments.
Section 2
AS 11.46.285 - Fraudulent use of an access device or
identification document.
Amends AS 11.46.285the statute related to fraudulent
use of an access deviceto include an identification
document. This clarification addresses a gap in the
statute identified by the Alaska
Court of Appeals in Kankanton v. State, 342 P.3d
(Alaska Ct. App. 2015).
Section 3
AS 11.46.370 - Possession of motor vehicle theft
tools.
Amends AS 11.46 by adding a new section establishing
the crime of Possession of motor vehicle theft tools
as a class A misdemeanor. The new crime is similar to
AS 11.46.315, Possession of burglary tools.
Section 4
Uncodified law
This section contains applicability provisions.
1:39:38 PM
REPRESENTATIVE KOPP said the current law for [theft in the
fourth degree] stipulates that an offender who has two or three
convictions can be charged with a higher class of crime, though
that the law does not apply to commercial establishments. He
noted that HB 98 appears to address retail theft. He asked
Chair Claman to explain that.
CHAIR CLAMAN said he believes Representative Kopp is referring
to "the aggregation statute" that allows the prosecution to
aggregate multiple crimes if it can find a single course of
conduct. He explained that HB 98 would eliminate the "single
course of conduct" requirement, meaning the only remaining
requirement for the aggregation of charges would be that the
crimes be found to have occurred within a 180-day period. He
said this would be limited to retail theft.
1:41:02 PM
REPRESENTATIVE EASTMAN asked what it means to aggregate cases.
MS. KUBITZ pointed to lines 15 through 18 on page 2 of Version
U. She explained that, within the context of HB 98,
aggregating means combining the value of the property or
services taken from one or more persons. She said the combined
amount would have to be more than $750 and less than $25,000.
REPRESENTATIVE EASTMAN asked whether aggregation would be
discretionary or required.
CHAIR CLAMAN answered that aggregation would be at the
prosecutor's discretion. He said this would be unchanged from
the current statute relating to the "single course of conduct"
requirement.
1:42:07 PM
REPRESENTATIVE EASTMAN noted that the presenters had mentioned
something about a burglary statute. He asked them to repeat it.
MS. KUBITZ said section 3, which would create AS 11.46.370, is
similar to AS 11.46.315, which makes it a crime to possess
burglary tools.
REPRESENTATIVE EASTMAN said he is interested in section 3. He
asked why possession of motor vehicle theft tools was included
in the bill as a new crime as opposed to an aggravator "on
already existing crimes."
CHAIR CLAMAN answered that this section was added primarily at
the request of law enforcement officials who believe it would be
useful. He noted that other states have similar laws. He
described a scenario in which someone is caught having not yet
stolen a car, but everything he/she is doing suggests he/she is
in the process of stealing cars. He said section 3 would give
law enforcement and prosecutors the ability to prosecute a
person engaged in those actions.
REPRESENTATIVE EASTMAN asked whether possession of the tools in
question would be categorically illegal, or if there would be
exceptions.
CHAIR CLAMAN said the crime of possession of motor vehicle theft
tools would require intent. That means, he explained, it would
not apply to a locksmith who has tools to unlock cars or any
other person who lawfully possesses those tools. He said no
crime would exist unless it can be shown that an individual
possesses the tools with intent to commit or assist in the
commission of vehicle theft.
1:44:51 PM
REPRESENTATIVE EASTMAN asked how intent is normally established.
CHAIR CLAMAN gave an example of how intent is established for
possession of burglary theft tools. He established a scenario
in which a person calls the police to report a prowler in
his/her backyard. The police arrive and find an individual
wandering around the backyard searching for a window to break.
The officers stop the individual before he/she enters the home
and find that he/she is in possession of tools that would
commonly be used to make the burglary happen. Chair Claman
explained that the individual in this situation could be charged
with possession of burglary tools even though a burglary has not
occurred. He said this example is analogous to an auto theft
scenario in which a person is caught wandering around parking
lots with a special key trying to unlock cars. The police, he
said, would be able to charge such a person with possession of
auto theft tools.
1:46:01 PM
REPRESENTATIVE EASTMAN asked a question about whether intent can
be retrospectively established for a previous crime.
CHAIR CLAMAN said he is not sure he can answer that question.
He said to convict a person of possession of motor vehicle theft
tools would require the prosecution showing that the offender
had the requisite intent at the time he/she possessed the tools.
REPRESENTATIVE EASTMAN said, "If I committed a crime previously,
and I happen to have held on to these tools, but I don't have
any current intent to use them because I already finished the
crime, is it your intent that that be illegal under this
language, or are we only focused on active intent at the time
that we find that I have the tools."
CHAIR CLAMAN characterized that scenario as "a fairly odd
hypothetical" because an individual who generally has tools
relating to committing a crime would have those tools
confiscated and forfeited as part of the crime. He said he
would expect that someone arrested and successfully charged with
possession of motor vehicle theft tools would no longer have the
tools once the conviction was complete.
1:47:43 PM
VICE CHAIR LEDOUX asked why a person wandering around a parking
lot trying to unlock doors would not be charged with attempted
burglary. She commented that section 3 seems "somewhat broad"
and could affect someone who happens to be in a parking lot with
one of these tools in his/her pocket.
CHAIR CLAMAN said a person who is jimmying car locks could be
charged with attempted vehicle theft, which is "one level lower"
than the actual offense had he/she succeeded. He stated that
possession of burglary tools is probably not among the most
commonly charged crimes in statute and that there would likely
be more attempted vehicle theft charges than possession of
vehicle theft tools charges. He noted that section 3 was
drafted based on recommendations by police officials. He added
that a similar charge is available to police and prosecutors in
other states.
1:50:02 PM
The committee took a brief at-ease at 1:50 p.m.
1:50:46 PM
VICE CHAIR LEDOUX returned the gavel to Chair Claman.
CHAIR CLAMAN opened public testimony on HB 98. He noted that a
pair of detectives from Anchorage were invited to testify but
were unable to call in today. He said the committee would
perhaps hear from law enforcement officials at a later meeting.
After ascertaining that no one else wished to testify, he closed
public testimony on HB 98.
1:51:50 PM
REPRESENTATIVE EASTMAN suggested that the new crime of
possession of motor vehicle theft tools would take the place of
the crime of theft when theft cannot be charged because the
theft has not been completed. He said he understands why law
enforcement would like to charge someone who has not yet
completed that particular crime. He said it would make sense
for possession of tools to be an aggravator of some kind when a
person is charged for having completed a crime. He expressed
reticence at charging a person for a new crime based on another
crime he/she has not yet committed.
1:53:07 PM
REPRESENTATIVE KOPP said that he can see from experience that
the bill would be useful for public safety. He observed that
the crime of theft in the second degree is a class C felony when
the offender has twice been convicted within the past five years
of stealing, at a misdemeanor level, $250 or more. He said he
likes that HB 98 would target crime sprees by making it clear
that the sum total of individual crimes can generate a felony.
He said the bill addresses the reality of how serial thieves
work. He noted that the prosecution would still have to prove
that these retail thefts all occurred within the time period for
it to be a felony. He stated that the bill addresses those who
cause the most damage to retail businesses and assuages concerns
about misdemeanor thefts not being taken seriously. He said the
bill would also help the criminal justice system quickly
intervene and prevent further violence, theft, and substance
abuse issues.
1:55:52 PM
REPRESENTATIVE SHAW expressed support for an intervention model
of addressing criminal justice and "nipping the problem early."
He said HB 98 would be beneficial.
REPRESENTATIVE KOPP added that the possession of motor vehicle
tools itself would not be a crime. He stressed that a
prosecutor would need to prove beyond a reasonable doubt that
the tools were intended to commit a crime. He said he
appreciates that HB 98 retains the language from the possession
of burglary tools statute.
REPRESENTATIVE SHAW remarked that HB 98 is a very good tool to
use.
CHAIR CLAMAN opined that it would be "extremely unlikely" that a
person would be charged with possession of auto theft/burglary
tools without evidence that he/she is actively engaged in
committing a crime. He acknowledged that the legislature could
make possession of motor vehicle theft tools an aggravating
factor but remarked that it would be difficult because "when the
conduct that is being charged in the felony is also part of the
conduct that relates to the aggravator, you can't find the
aggravator because it's already subsumed in the particular
conduct." He said the resulting aggravator would be seldomly
used. He noted that a person who is driving a stolen car could
be charged with both auto theft and possession of auto theft
tools.
1:58:33 PM
REPRESENTATIVE LEDOUX asked about the real-life application of
section 3. She said she understands the parking lot scenario.
She established a different scenario in which a person is
suspected of auto theft, the police obtain a search warrant to
search the person's residence, and the police find motor vehicle
theft tools. She asked whether finding the tools in conjunction
with the suspicion would be enough to charge the person under
the proposed statute.
CHAIR CLAMAN acknowledged that Michele Logan from the Anchorage
Police Department (APD) had called in. He deferred to her.
2:00:28 PM
MICHELE LOGAN, Deputy Detective, Anchorage Police Department,
said she has worked with APD for 24 years, 17 of those spent
working on financial and property crimes. After having
Representative LeDoux repeat the question, Detective Logan
answered that she believed finding the tools would be enough to
charge the person because sufficient probable cause would have
already been established when the search warrant was acquired.
She said finding the tools would strengthen the case for vehicle
theft. She explained that motor vehicle theft tools include
shaved keys, also known as bump keys, which allow thieves to
access locked vehicles. She described arrests in which the
person arrested was in possession of "a plethora" of keys. She
clarified that these are the kinds of tools targeted by HB 98.
She also mentioned how a screwdriver can be used to access a
car's ignition, but implied that the main focus is shaved keys.
If you arrest a person with 20 bump keys in their pocket," she
said, "they're probably stealing vehicles, but maybe you don't
have them on [a vehicle theft charge]." She spoke about rampant
auto theft in Anchorage and said these types of tools lend
themselves to that problem. She listed additional vehicle theft
tools: jiggler keys, bump keys, and old or worn keys. She said
it would be useful if people knew that possession of those items
was a misdemeanor crime.
2:03:59 PM
REPRESENTATIVE LEDOUX asked if Detective Logan is saying that a
charge can be brought against a person without proving intent to
steal a car, and that just the possession of the tools would be
a crime. She said it concerns her that Detective Logan appears
to be saying there is no legitimate reason why someone might
have those tools.
DETECTIVE LOGAN noted that it is already a crime to possess
burglary tools or tools for counterfeiting credit cards. She
said HB 98 would simply add a new crime for possessing tools to
commit auto theft. She said she does not think it is a huge
leap.
CHAIR CLAMAN noted that, in Detective Logan's description of a
person in possession of 20 shaved keys, the police would not see
those keys unless they have already contacted the person based
on suspicion. He clarified that this does not remove the need
to find intent. He said he thinks Detective Logan's argument is
that possession of 20 shaved keys may be enough in and of itself
to convince a jury that there is intent, but that does not
remove the need to prove it.
DETECTIVE LOGAN described it as "prima facie evidence."
REPRESENTATIVE LEDOUX asked for confirmation that Detective
Logan is saying that the possession of the tools itself is an
indication of intent.
DETECTIVE LOGAN said "Legislatively, you would make it a
misdemeanor to possess those types of tools because that is what
those particular types of tools are for." She added that people
who possess those types of tools are probably involved in some
type of vehicle theft.
2:06:36 PM
CHAIR CLAMAN asked how police would distinguish auto thieves
from locksmiths or any other person who legitimately possesses
tools to open locks.
DETECTIVE LOGAN answered that a locksmith would have a license.
2:07:10 PM
REPRESENTATIVE WOOL said he initially felt that the language
about intent in section 3 was clear. He expressed concern with
Detective Logan's statements regarding the tools being
incriminating in and of themselves. He established a scenario
in which a person is pulled over for speeding and the officer
spots a shaved key on his/her keyring. He asked if that could
qualify as intent to steal a car even if the person is driving
his/her own legally owned car. He noted that he has had cars
that he could only start with a screwdriver. He said he does
not want a situation where someone is presumed guilty because
he/she has a weird key.
DETECTIVE LOGAN said she does not think a person would be
charged with having a key unless there are other circumstances.
She gave an example of a hypothetical person booked at the
police station after having been found sleeping in a stolen car,
and that person is found to have a shaved key. She said
possession of the key would be an additional crime that can be
charged. She gave another hypothetical example of a person who
matches the description of a suspected prowler who could be
charged should a shaved key be found on his/her person. She
expressed the importance of establishing probable cause and
described that process. She said police would not arrest
someone for possessing motor vehicle theft tools without first
establishing probable cause.
2:09:22 PM
REPRESENTATIVE EASTMAN noted that Chair Claman had previously
mentioned that the crime of possession of motor vehicle theft
tools would not come into play unless an individual has already
been contacted by law enforcement. He opined that this is a
slippery slope. He relayed how easy it is for a trained traffic
officer to find some reason to pull over a vehicle. He asked
whether Detective Logan believes a long-handled screwdriver is a
motor vehicle theft tool.
DETECTIVE LOGAN said, t is, especially when it is lying on the
floorboard of a vehicle that has the steering column punched."
She added that sometimes she sees screwdrivers in the ignition
of a car. She said that, at that point, they do become motor
vehicle theft tools.
2:11:29 PM
REPRESENTATIVE KOPP highlighted the words "with intent to use or
permit use of the tool in commission of a burglary" in the
language of the current statute relating to the crime of
possession of burglary tools. He said the proposed statute for
possession of motor vehicle theft tools is written identically
to the burglary tools statute. He asked her to explain for the
committee the differences between acting with reckless
disregard, acting knowingly, and acting intentionally.
DETECTIVE LOGAN said if the police catch someone in the
commission of a burglary or stop a person while investigating a
burglary, and that person has the tools on his/her person, then
that qualifies as probable cause. She described other kinds of
burglary tools, including dynamite, nitroglycerin, torches, and
electric arcs. She expressed the importance of the activity
surrounding how a person is contacted by law enforcement. She
offered a scenario in which a person is brought in for
questioning as an auto theft suspect and the police find a mini
prybar up his/her sleeve. She said possession of burglary tools
is an additional charge that can be used if "you can't
necessarily pin them on the burglary" because the individual did
not get into the targeted house and thus did not go through with
the burglary. She noted that police would not be able to charge
someone for simply carrying a prybar on the street. She said
police would not arrest an individual for simply having a key in
his/her pocket.
2:16:34 PM
REPRESENTATIVE KOPP asked, "If you encounter someone who
possesses [motor vehicle theft or burglary tools], the
possession alone is not a criminal offense unless you can show
intent to use [them] to commit the crime. Is that correct?"
DETECTIVE LOGAN said that is correct.
REPRESENTATIVE SHAW reminded everyone that probable cause and
intent attached to these tools not just having the tools - is
what makes the difference. He noted that without probable cause
and without intent, it is a nonissue.
REPRESENTATIVE WOOL stated that he understands probable cause
and understands the intent of the legislation. However, he
said, the testimony he has heard gives him pause. He noted that
screwdrivers are not listed in section 3 and restated that he
has owned cars that he started with screwdrivers. He offered a
couple hypotheticals in which a person is stopped for an
unrelated crime and is found to have a motor vehicle theft tool
on his/her person or in his/her vehicle. He said Ms. Logan's
testimony implies that the presence of tools could be used to
charge an additional crime.
DETECTIVE LOGAN said that is not what she meant. She clarified
that the police will not arrest someone just because that person
has an item in his/her pocket or in his/her car. She said there
has to be a scenario in which the person is a suspect or
"suspicious for some reason."
2:19:06 PM
REPRESENTATIVE WOOL noted that he is not asking about police
pulling someone over just because that person has a tool. He
clarified that, in his scenarios, the police stop the person for
another crime, and in the course of that action find a motor
vehicle theft tool, which results in a charge for that crime.
DETECTIVE LOGAN established a scenario in which the police find
a bump key in the pocket of a driver pulled over for driving
under the influence (DUI) in a vehicle he/she owns or is
permitted to drive. She said she does not think any officer
would add the charge of possession of motor vehicle theft tools
to the DUI charge. She said if the police interview the driver
about the key and the driver confesses to having used it to
steal a car, then the police have a case. She said police
allow people to go free with those kinds of tool every day. She
compared it to when marijuana was categorically illegal and
police officers let people go free when paraphernalia was found
on their person. She opined that the proposed statute is not
"muddied" and that law enforcement officers would understand it.
2:21:15 PM
REPRESENTATIVE LEDOUX said she thinks the proposed statute is
fairly muddied. She expressed concern with the statute relating
to possession of burglary tools, which includes items such as
dynamite. She stated that people can possess dynamite "because
they want to blow up something which is perfectly okay to blow
up." She said Detective Logan's testimony implies that the
decision whether or not to arrest a person for possessing these
tools is at the discretion of law enforcement and based on an
officer's assessment of the person. She said she finds that
concerning. She established a scenario in which police officers
are investigating a potential car thief prowling around a
property and spot a man who is a block from that property.
CHAIR CLAMAN fleshed out Representative LeDoux's scenario and
finished asking her question. He said the man in the scenario
is in possession of 20 keys that look like car theft keys. He
asked if the police could charge that person with possession of
motor vehicle theft tools.
DETECTIVE LOGAN answered that the officer could charge that
person if the officer can establish probable cause. She said
probable cause can be established through an interview with the
person and/or a survey of that person's criminal history. She
repeated that the officer needs probable cause and stated that
probable cause is "the protection for the citizen."
CHAIR CLAMAN noted that probable cause is enshrined in both the
state and federal constitutions.
2:24:07 PM
REPRESENTATIVE LEDOUX asked whether the person who is a block
away from the suspicious activity is obligated to consent to an
interview and/or search by police.
CHAIR CLAMAN commented that there is a well-established
difference between a police officer's ability to question a
person and an officer's ability to frisk or take a person into
custody.
DETECTIVE LOGAN said there is bountiful precedent for officers
stopping someone for questioning. She noted that if the person
does not want to answer an officer's question, that person is
welcome to refuse and keep on walking. She said if officers are
investigating a call and/or see a person who matches a
description of a suspect, they can stop the person to ask
him/her questions. At that point, she added, the officers have
the right to protect themselves by patting down the person to
ensure he/she is not carrying a weapon. She said police are
required to go through an investigative process. She described
the process of interviewing a person. She said police do not
abuse the process to establish probable cause.
2:26:25 PM
REPRESENTATIVE EASTMAN asked how broadly the phrase "commission
of a crime" is interpreted. He asked, "Does that start when I
leave my house to go steal a car or does that start when I break
the window?"
DETECTIVE LOGAN said she does not want to claim to know the
caselaw for every situation. She said some overt act is
required for "intent to steal a vehicle" to be established. She
noted that most of the people APD arrests for vehicle theft are
caught in the car. She said that a person who is thinking about
or talking about stealing a car - or who has departed his/her
residence planning to steal a car - has not done enough to merit
intervention. She said police cannot intervene until an overt
act has been committed. She defined "probable cause" as a
situation in which "a reasonable person" would determine that [a
crime is probably being committed].
REPRESENTATIVE EASTMAN said that raises the question of why a
new crime is necessary if police are already dealing with and
catching people in the commission of vehicle theft. He noted
that several of the questions asked involve people who are not
caught in the car but are caught in some stage of committing the
crime. He established a scenario in which a motor vehicle theft
tool is brought into a parent's house by a child, and the parent
knows that the child is doing illegal things. He asked at what
point could the parent be charged with permitting the use of the
tool for motor vehicle theft.
DETECTIVE LOGAN stated that simple possession without intent
would not be charged. She added that police officers often find
people with illegal items and do not charge those people. She
said section 3 would be a deterrent against the "epidemic of
vehicle theft." She gave an example of a situation in which
there are multiple people in a stolen car but the only person
who the police can charge with stealing the vehicle is the
driver. But, she said, if the person in the passenger seat has
a pocket full of shaved keys, police could then charge that
person with possession of motor vehicle theft tools. She
offered other examples and provided further details about the
investigatory process. She compared the process of charging
class A misdemeanor possession of motor vehicle theft tools and
charging felony motor vehicle theft.
2:33:20 PM
REPRESENTATIVE SHAW asked whether a person can be stopped if
there is reasonable cause, if constitutional provisions are
followed, and if the police officer acts with common sense.
DETECTIVE LOGAN answered yes.
2:34:05 PM
CHAIR CLAMAN drew attention to lines 16 through 18 on page 3.
He noted that the Version U of the bill does not include
language about electronic keys or electronic boxes that emulate
the signals from key fobs. He asked whether Detective Logan
feels it would be beneficial to add language that would include
electronic unlock devices under the definition of "motor vehicle
theft tool."
DETECTIVE LOGAN answered yes. She described examples of those
devices being used to steal vehicles in Anchorage.
2:35:54 PM
REPRESENTATIVE EASTMAN drew attention to line 17 on page 3. He
asked whether an amendment would be necessary to include
electronic devices, as the current language covers any "similar
device adapted or designed for use in committing vehicle theft."
CHAIR CLAMAN said that is the question to be evaluated. He
noted that the key phrase in the current language is "similar
device," and the question is whether the word "similar" narrows
what that device can be.
2:37:00 PM
REPRESENTATIVE WOOL mused that anyone who steals a car probably
has a tool to do so. He asked if that means the misdemeanor
charge for possession of motor vehicle tools would just be an
additional charge on top of felony motor vehicle theft.
CHAIR CLAMAN said that is an interesting question. He asked
Detective Logan if it is common for the prosecution to levy the
additional charge of possession of burglary tools on top of a
charge for burglary.
DETECTIVE LOGAN said that the charge is often just for burglary,
but the prosecution would probably add the additional charge if
the individual is apprehended with a bag full of what are
defined as burglary tools. She said the same thing would apply
to motor vehicle theft. She discussed the way a screwdriver can
be modified to be a motor vehicle theft tool, but the totality
of circumstances would be the determining factor for charging
the crime. She described the process of charging misdemeanors
versus felonies and explained that charging a misdemeanor along
with a felony can be beneficial.
CHAIR CLAMAN noted that screwdrivers are not in the current
proposed statute. He said there would be opportunities to
further discuss the topic of screwdrivers.
2:40:02 PM
CHAIR CLAMAN referenced section 2, which relates to fraudulent
use of an access device or identification document. He said it
is his understanding that Detective Logan recommends lowering
the property value to qualify as a felony from "$750 or more but
less than $25,000." He asked her to explain the analysis behind
that suggestion and what lower amount she feels would be
appropriate.
DETECTIVE LOGAN said she testified in 2005 on House Bill 131
[Passed in the Twenty-Fourth Alaska State Legislature], which
related to the fraudulent use of an access device. She said
that before 2005, the felony threshold followed the theft
statutes, so "a felony was $500. She said identity theft
became a prolific problem around 2005, so House Bill 131 lowered
the felony threshold for fraudulent use of an access device to
$50. She said Senate Bill 91 [passed in the Twenty-Ninth Alaska
State Legislature] made the felony threshold equivalent to theft
statutes, which means felony use of an access device currently
requires a value of $750. She noted that credit card thieves do
not often spend upwards to $750 in a single purchase or over
multiple purchases on a stolen card. She said a credit card
theft victim would think the person who stole his/her card
should be guilty of a felony offense, as a stolen credit card
opens up the possibility of identity theft in addition to
monetary theft. She said House Bill 131 made it so if a credit
card thief completed a transaction for $50, he/she would be
guilty of a class C felony. She described what typically
happens when a person steals a credit card and relayed the kinds
of transactions thieves commonly make to test a stolen card,
such as a fuel purchase at a gas station. She said that, at
some point, the victim will turn off the credit card, likely
before the thief crosses the felony threshold by amassing $750
in charges. She opined that stealing a credit card and using it
for an amount over $50 should be a felony. She noted that
stealing and forging a check has always been a class C felony,
even when it is only for $10. But, she said, if a person steals
a credit card and uses it, that person is not guilty of a felony
until $750 has been spent. She added that stealing a credit
card has additional consequences such as affecting the victim's
credit score. She opined that it should be a felony offense.
2:44:48 PM
REPRESENTATIVE WOOL questioned whether "a $10 check" should be a
felony. He observed that a credit card thief who uses a stolen
card at a gas station would not do much harm to the victim's
credit score. He noted that the implications of having a felony
on one's record can be significant.
DETECTIVE LOGAN remarked that the theft of a credit card often
results in considerable inconvenience and frustration for the
victim. She opined that punishing the crime with a misdemeanor
charge would be like "a slap on the wrist."
2:47:11 PM
REPRESENTATIVE EASTMAN said he would like to hear from and ask
questions to a representative from the Department of Law (DOL).
CHAIR CLAMAN said there is no one available from DOL today. He
said a DOL representative would be available at the next bill
hearing.
2:47:53 PM
REPRESENTATIVE LEDOUX said it does not appear that HB 98 would
change the $750 threshold.
CHAIR CLAMAN said the only change in section 2 would be the
addition of "identification document" to AS 11.46.285. He said
this change is in response to the Alaska Court of Appeals
decision in Kankanton v. State.
REPRESENTATIVE LEDOUX said, "So all of this discussion as to
whether or not you should be charged with a crime...
CHAIR CLAMAN said that, because AS 11.46.285 would be amended by
HB 89, the detectives suggested the committee consider lowering
the threshold for a felony to a lower amount. He noted that the
detectives' recommendation is $50.
REPRESENTATIVE LEDOUX asked for confirmation that such a change
is not currently reflected in the bill before the committee.
CHAIR CLAMAN confirmed it.
2:49:24 PM
REPRESENTATIVE EASTMAN asked what items are captured under the
term "identification document."
CHAIR CLAMAN recommended that Representative Eastman read
Kankanton v. State, which discussed the distinction between
access devices and identification documents.
2:50:25 PM
REPRESENTATIVE EASTMAN opined that the legislature "could solve
a lot of these issues by simply increasing the penalties for
things like vehicle theft rather than coming up with a new crime
to try and catch people who have or haven't committed the crime
of vehicle theft." He expressed concern that someone like
Representative Wool who drives a car with a screwdriver could be
misidentified as a potential vehicle thief.
[HB 98 was held for further review.]
2:51:24 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:51 p.m.