Legislature(2019 - 2020)GRUENBERG 120

04/08/2019 01:00 PM JUDICIARY

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Audio Topic
01:34:56 PM Start
01:35:35 PM HB98
02:51:24 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Delayed to 1:30 pm --
+ HB 98 PROPERTY CRIME; MOTOR VEHICLE THEFT TOOLS TELECONFERENCED
Heard & Held
-- Public Testimony --
+ Bills Previously Heard/Scheduled 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.                                                                 

Document Name Date/Time Subjects
HB098 ver U 4.8.19.PDF HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Sponsor Statement 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Sectional Analysis ver U 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Supporting Document-APOA Letter 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Supporting Document-NFIB Letter 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Supporting Document-NICB Letter 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Additional Document-Kankanton v State 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Additional Document-Dept. of Law Letter 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Fiscal Note DHSS-PS 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Fiscal Note LAW-CRIM 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Fiscal Note DPS-DET 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Fiscal Note DOA-OPA 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Fiscal Note DOA-PDA 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98
HB098 Fiscal Note DOC-IDO 4.8.19.pdf HJUD 4/8/2019 1:00:00 PM
HB 98