Legislature(2015 - 2016)CAPITOL 120
04/13/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB27 | |
| HB7 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 27 | TELECONFERENCED | |
| *+ | HB 7 | TELECONFERENCED | |
| += | HB 147 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 7-HOMICIDE OPERATING VEHICLE, PLANE, BOAT
2:28:59 PM
CHAIR LEDOUX announced that the final order of business would be
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 7, "An Act relating to
murder in the second degree and manslaughter."
2:29:11 PM
REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, pointed
out that, especially in South Central Alaska, there has been a
rash of vehicle versus pedestrian, and vehicle versus biker,
deaths. He referred to an email from the Department of
Transportation indicating that in 2010-2014, there were 29
pedestrian fatalities, and 5 cyclist fatalities in Anchorage
alone. The combination during that window of pedestrian and
cyclists deaths constitutes almost 23 percent of all traffic
fatalities in Alaska, he explained. This is a serious problem
for vulnerable pedestrians and cyclists as it is an appealing
mode of transportation, and cities are now designed to
facilitate that type of transportation for the well-being of
everyone. He specified that this bill does not require all
drivers to be perfect in that there are bad pedestrians, and bad
cyclists who injure themselves or contribute to their own
injuries by their negligence. Currently, he related, Alaska is
one of 3 states out of 50 without vehicle homicide statutes,
even though under existing provisions under AS 11.41.110 and AS
11.41.120, the state often successfully charge murder in the
second degree and manslaughter. He suggested Alaska implement a
statute plainly calling these crimes, should they become
culpable enough to be prima facie crimes, what they are which is
types of vehicular homicide. He posited that juries are
entitled to use its intuitive sense and say, "you are having to
describe that this vehicle is a dangerous instrument, under
probably 11.81.900, and they get there ... I think they get
there ... we'll hear from the state whether sometimes they can't
make that leap because they are looking for a knife or a gun."
He opined that without shifting any particular burdens in these
trials, the state is allowed to have a vehicular homicide law
more plainly intuitive.
2:34:25 PM
REPRESENTATIVE JOSEPHSON advised that he is aware that a factor
of the equation is good urban design and city planning.
Arguably, he stated, currently there are 21 types of murder in
the second degree in that while there are five subsections,
there are subsections and clauses within those. He advised this
bill adds the crime of murder in the second degree if a person
caused the death of another person while operating a motor
vehicle, watercraft, or aircraft, under circumstances
manifesting in extreme indifference to the value of human life.
He explained that while online, he observed 124 cases discussing
extreme indifference, although he could not find extreme
indifference in the statute he is positive there are jury
instructions in every superior court defining extreme
indifference as it is a very high standard and threshold. He
emphasize that the intent of the bill is not to just target
drunk drivers, but bad drivers such as operating a cell phone.
2:35:33 PM
CHAIR LEDOUX asked the difference in targeting bad drivers and
people who have been negligent, who have done something stupid.
Something stupid is not necessarily extreme indifference to
human life, she argued.
REPRESENTATIVE JOSEPHSON agreed with Chair LeDoux, and referred
to Sec. 2, amending manslaughter which says "if a jury can show
that someone recklessly caused the death of another person while
operating a motor vehicle, watercraft, or aircraft, that that
would be a prima facie ... well, the jury would have convicted
them if they'd made that finding, but law enforcement would have
to find a prima facie case that someone reached the definition
of recklessness in order to even bring the case and bring an
indictment."
2:36:47 PM
REPRESENTATIVE KELLER assumed Representative Josephson was
referring to 124 cases wherein that terminology was used by the
prosecuting attorney. He asked whether extreme indifference is
a term currently in Alaska Statute, including the instructions
Representative Josephson implies exist as he would like to
review the examples. He offered that he has never seen that
terminology in the murder statute.
REPRESENTATIVE JOSEPHSON offered that the term comes from the
Model Penal Code under Neitzel v. State, 655 P.2d 325 (Alaska
Ct. App. 1982). He explained this is a tentative draft, but
Representative Keller may get a taste of it. He related, "A
person with the crime of murder if he recklessly causes the
death of another person under circumstances manifesting in
extreme indifference in the value of human life." He offered
another test applied in the law ...
REPRESENTATIVE KELLER interjected that he was speaking to Alaska
statutes and not case law as this is entering new terminology in
Alaska statute. He opined that the legislature does not want to
do that lightly because it does not want to follow case law
arguments.
REPRESENTATIVE JOSEPHSON related that extreme indifference is
currently in statute and not necessarily in murder in the second
degree or manslaughter. He explained there is a four-pronged
test applied regarding social utility, magnitude of risk,
actor's knowledge of risk, and precaution the actor takes to
minimize the risk. He reiterated it is a high threshold and he
is not trying to put people in prison.
2:39:48 PM
REPRESENTATIVE GRUENBERG referred to [Section 1, AS
11.41.110(a)(2)], page 1, lines 8-10, which read:
(2) the person knowingly engages in conduct
that results in the death of another person under
circumstances manifesting an extreme indifference to
the value of human life.
REPRESENTATIVE GRUENBERG pointed to the term in that statute.
He then referred to [Section 1, AS 11.41.110(a)(6)], page 2,
[lines 18-20], which read:
(6) the person caused the death of another
person while operating a motor vehicle, watercraft, or
aircraft under circumstances manifesting in extreme
indifference to the value of human life.
REPRESENTATIVE GRUENBERG opined that the above new subsection is
virtually identical to Section 2, of the current bill. He said
the only technical language difference is that Section 2, talks
about knowingly engaging in conduct that results in the death,
and the language on page 2, line 18, says "causes the death."
He opined that the word "cause" is identical in effect to the
current language and asked whether it is the sponsor's intent
that the word "cause" is any different than the current
language.
REPRESENTATIVE JOSEPHSON responded he is confident that under
the default statute where there is an absence of culpable
militate as to conduct in subsection (6) the culpable militate
would be knowing as in subsection (2), and as to circumstance it
would be reckless. He highlighted that it is common to have
different theories of one case in that the prosecutor looks at
the bad act and may charge it in different manners. As the
facts flesh themselves out in approaching trial, settle on the
most reasonable, or the best as the one for which the evidence
is most supportive, he submitted. While he agree that
subsection (6) could be subsumed by subsection (2), he continues
to assert the fact that Alaska does not have the vehicular
homicide statute is unnecessary as a matter of policy, he
posited, he said. It creates more burden for the prosecution
that is unnecessary and not intuitive to the jury, he contended.
2:42:54 PM
REPRESENTATIVE CLAMAN pointed to the premise that Alaska lacks a
vehicular homicide statute and advised it troubles him because
he has defended vehicular homicide crimes that were charged as
manslaughter or murder in the second degree depending upon the
circumstances. Often the debate is whether it is manslaughter
or negligent homicide and the jury is involved in the topic
about mental state, circumstance, the whole range of
circumstances, and when starting with the premise that Alaska
lacks a vehicular homicide statute, he does not see that. He
contends that when the Model Penal Code was adopted in large
part and rewrote the Alaska Criminal Code in 1980, there was an
intentional effort to place crimes involving the typical
vehicular homicide crime as manslaughter, and it would only be
exceptional vehicular homicide case that would become second
degree murder.
REPRESENTATIVE JOSEPHSON advised that last week the 9th Circuit
Court of Appeals in the case Gibson v. Johnson, No. 13-35087,
D.C. No. 3:11-cv-00432-AC, reached the correct conclusion and
had to wrestle with the topic of "when is a vehicle a dangerous
instrument." This is something that as a matter of policy and
should be dispensed with, he opined.
2:45:39 PM
REPRESENTATIVE CLAMAN asked that Representative Josephson cite
one case in which the Court of Appeals got it wrong.
REPRESENTATIVE JOSEPHSON answered that is a lifeline question.
REPRESENTATIVE CLAMAN surmised that he could not cite a case in
which the Court of Appeals got it wrong, and offered he is
familiar with a number of cases and his memory is that it pretty
much got it right every time.
REPRESENTATIVE JOSEPHSON directed the committee to the packet
and noted there is a comment in a newspaper article from Ms.
McDaniel, a long time criminal attorney, highlights the fact
that due to a cultural predisposition, the state does not
sanction drunk driving homicide the way it sanctions other types
of homicide.
2:46:46 PM
REPRESENTATIVE GRUENBERG asked whether another way of
approaching the problem is to include in the definition
somewhere that this conduct may include vehicular conduct,
without creating a new crime.
REPRESENTATIVE JOSEPHSON responded that is not the approach he
and the drafters took, but understands what Representative
Gruenberg is saying.
REPRESENTATIVE GRUENBERG reiterated to include in a definition,
and make it clear to one and the world that this conduct does
include, but is not limited to, vehicular conduct.
REPRESENTATIVE JOSEPHSON answered that Representative
Gruenberg's suggestion is an option, and remarked there has to
be a legislative role in this as Alaska is suffering from a rash
of these problems. He has confidence that law enforcement can
separate the egregious and criminally culpable from the others,
he offered.
2:48:15 PM
CHAIR LEDOUX said she identifies with Representative Claman in
that there are all sorts of vehicular homicide and manslaughter
crimes involving vehicles and wondered whether this is a
solution looking for a problem that may not exist.
2:48:52 PM
REPRESENTATIVE GRUENBERG deduced that the problem could be
solved as a definition.
CHAIR LEDOUX stated, "Assuming there actually is a problem."
CHAIR LEDOUX opened public testimony.
2:49:51 PM
KARLA HART said she participates in bicycle tours and does not
often ride in Juneau because it does not feel safe. She said
she traveled to the Netherlands to investigate the bicycle
culture and infrastructure and found that the signs, trails, and
everything were great. She then realized the people on the road
were actively looking out for her safety in their cars because
Netherlands law reads that when a car hits a pedestrian or a
bicyclist the car is at fault. She advised the culture of the
Netherlands works to train people so that there are far fewer
injuries because they actively do not hit people. She opined
that Alaska law reads "if you want to kill somebody in Alaska
hit them with a car and say it was their fault." She remarked
there is model legislation from the League of American
Bicyclists addressing more that could be added on to this bill,
or supplemented, which is a deterrence. Currently, the people
charged with a felony under HB 7, will not be deterred by the
existence of this bill, she expressed, as the language with the
model legislation says, "a person who operates a motor vehicle
in a careless or distracted manner and causes serious physical
injury or death to a vulnerable roadway user shall be guilty of
infliction of serious physical injury or death to a vulnerable
roadway user. And that person will be issued a citation under
this section and required to attend a hearing before a court of
appropriate jurisdiction." She pointed out that the choice was
specifically to require a court appearance and not just pay a
ticket and get away from it. Further, she commented, it has a
person having been committed under this statute required to have
driving privileges suspended for six months. She reiterated
that when a person is careless and causes a serious injury or
death to a bicyclist they lose their license for six months
which is a deterrence to more people to get to the safety of
bicyclists than just going after the most egregious. She
pointed out that there are many people in the bicycle community
as well as other vulnerable roadway users, including highway
flaggers, people on the highway fixing flat tires, kids on
skateboards, scooters, and many different users.
2:54:16 PM
REPRESENTATIVE GRUENBERG offered that the bill has a lot of
merit.
2:54:39 PM
REPRESENTATIVE CLAMAN emphasized that his questions on this bill
do not reflect his dedication to making it safer for bicyclists.
He has substantial questions because he is not sure there is a
problem and that the homicide statutes should be amended, he
reiterated, and expressed his concern in getting drivers to more
seriously take their duty to protect pedestrians and bicyclists
because those without a car around them are vulnerable.
CHAIR LEDOUX commented she identifies with Representative Claman
on this issue having just bought a bicycle.
CHAIR LEDOUX closed public testimony after ascertaining no one
further wished to testify.
CHAIR LEDOUX asked Richard Svobodny whether this bill is
necessary.
2:56:47 PM
RICHARD SVOBODNY, Deputy Attorney General, Criminal Division,
Department of Law, said "the sky is not going to fall in ...
fall down if this bill doesn't pass." He advised that prior to
Representative Josephson introducing HB 7, the Anchorage
District Attorney, and Anchorage Deputy District Attorney, both
having practiced in other jurisdictions, suggested there be a
vehicular homicide statute for two reasons. He pointed out that
one reason is that prosecutors want to be consistent in the
manner they charge as someone should not be charged differently
in Palmer with the same facts as in Kenai. Prosecutors should
be consistent with the conduct and mental states the same. This
bill puts prosecutors closer to consistency because there are
specific sections of both homicide and manslaughter that a
prosecutor would look to in order to make a determination as to,
how do these facts fit this law and, hopefully, the law would be
more consistent, he explained. He offered that the other issue
is that when someone is charged with the crime of manslaughter,
or murder, it is difficult for the jury to get their minds
around ... the discussion is regarding killing people. Under
these circumstances that is a gross deviation for standard of
conduct that a reasonable person would use, or in extreme
indifference to the value of human life - the two different
standards for manslaughter and criminally negligent homicide, he
further explained. When discussing people using a car in a
grossly inappropriate manner resulting in death, grossly
inappropriate manner is the difference in present statutes of
committing negligent homicide and manslaughter. He advised this
bill takes out, from those two standards the jury's
consideration that the conduct is driving an automobile. Under
Gibson, the exact issue for the 9th Circuit Court of Appeals
decision, "is a motor vehicle a dangerous instrument" and the
court concluded it was. With regard to Representative Claman's
question, "they always get it right," as they are the Court of
Appeals.
3:00:41 PM
CHAIR LEDOUX asked whether there has been any court in the
country or universe that has ever concluded that a car is not a
dangerous instrument.
MR. SVOBODNY advised he does not have the answer to that
question as it is all fact determined.
CHAIR LEDOUX asked whether he could imagine a court, where
someone had been injured with a car, not concluding that a car
was a dangerous instrument. She further asked whether there is
really that much to grapple with.
MR. SVOBODNY pointed out that Chair LeDoux set the parameters in
that someone has been hit with a car. He commented that when
previously asked he was thinking ... so a person is in the car,
lets the engine run, they die from carbon monoxide ... he does
not know the answer. The jury may review a dangerous instrument
as a gun, a knife, and ask whether a car is a dangerous
instrument. He advised those were the reasons the front line
prosecutors said they need to follow 47 other states and
implement a vehicular homicide statute.
3:02:17 PM
REPRESENTATIVE CLAMAN asked whether Mr. Svobodny is familiar
with any Alaska cases, 9th Circuit Court of Appeals, or Alaska
Supreme Court cases in which vehicular homicide was the issue
wherein the court concluded the vehicle was not a dangerous
instrument. He further asked whether the courts have
consistently found when challenged that it is a dangerous
instrument for purposes of either negligent homicide,
manslaughter, or second degree murder.
MR. SVOBODNY replied that last week the court said, in a robbery
case, that the car was a dangerous instrument and the two-three
cases the court cited in that case were vehicular homicide cases
that decided a vehicle is a dangerous instrument.
CHAIR LEDOUX advised HB 7 is held over.
3:03:50 PM
REPRESENTATIVE GRUENBERG questioned whether the language could
specify in subsection (2), page 1, line 8, that the conduct
includes operating a motor vehicle, and the same on page 2, line
23, it could read "under circumstances including the operating
of these vehicles." He pointed out, thereby indicating the
legislature's intent to make it clear that under these two
statutes, it includes the operation of the vehicle.
3:04:36 PM
MR. SVOBODNY replied that he is not the sponsor and was not
certain it met the sponsor's goal. He suggested putting it in
Section 1, page 1, line 8, "the person knowingly engages in
conduct including the operation of a motor vehicle."
[HB 7 was held over.]