Legislature(2019 - 2020)GRUENBERG 120
04/02/2019 04:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB98 | |
| HB96 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 10 | TELECONFERENCED | |
| *+ | HB 115 | TELECONFERENCED | |
| *+ | HB 98 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 96 | TELECONFERENCED | |
HB 98-PROPERTY CRIME; MOTOR VEHICLE THEFT TOOLS
5:47:05 PM
CO-CHAIR KREISS-TOMKINS announced that the first 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."
5:47:36 PM
REPRESENTATIVE MATT CLAMAN, Alaska State Legislature, as prime
sponsor of HB 98, relayed that Alaska is currently facing many
public safety challenges - a devastating opioid epidemic, cuts
to public safety resources, and a down economy with a rising
unemployment rate. The state works every day to use its public
safety resources wisely to improve public safely despite
financial challenges. He said that law enforcement officials in
Alaska have reported increased difficulty when arresting and
prosecuting serial theft offenders. After discussions with law
enforcement officials, he introduced HB 98 to strengthen
Alaska's laws relating to theft and other offences against
property and to improve public safety by giving police officers
and prosecutors additional tools for arresting and prosecuting
criminals.
REPRESENTATIVE CLAMAN continued by saying that HB 98 effectively
targets serial offenders and is supported by the National
Insurance Crime Bureau (NICB) and the Alaska Peace Officers
Association (APOA).
5:49:19 PM
CO-CHAIR FIELDS moved to adopt the sponsor substitute (SS) for
HB 98, [Version 31-LS0626\M, Radford, 3/19/19] as the working
document. There being no objection, Version M was before the
committee. [It was ascertained during the hearing on HB 98 that
since SSHB had not been introduced on the House floor, HB 98,
Version A, was before the committee.]
5:49:29 PM
LIZZIE KUBITZ, Staff, Representative Matt Claman, Alaska State
Legislature, provided a sectional analysis for HB 98, Version M,
on behalf of Representative Claman, prime sponsor, which read as
follows:
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.
MS. KUBITZ mentioned that a copy of the Kankanton v. State court
case was provided in the committee packet.
5:51:41 PM
REPRESENTATIVE WOOL asked for the definition of "aggregate" in
the legal context in Section 1.
MS. KUBITZ answered that Section 1 addresses repeat offenders
within the 180-day period. For people who rob from a commercial
establishment, but the robbery does not meet the $750 threshold,
their crimes may be aggregated for prosecution.
REPRESENTATIVE WOOL asked whether the value of the items stolen
would be aggregated in order to meet the $750 threshold.
MS. KUBITZ responded that the amount would be the combined value
of those items. She cited page 2, lines 15-18, of Version M,
which read:
(8) the combined value of the property or services
taken from one or more persons or commercial
establishments within a period of 180 days, adjusted
for inflation as provided in AS 11.46.982, is $750 or
more but less than $25,000.
5:53:22 PM
REPRESENTATIVE STORY noted that the fiscal note (FN) from the
Department of Administration (DOA) is indeterminant and offered
that with the high volume of theft, she would expect a FN
greater than zero.
REPRESENTATIVE CLAMAN answered that departments frequently take
the position that they can't determine the cost. He posed the
question, Do three theft offenses require more work or less work
than three offenses consolidated into a single offense? He
maintained that the department cannot say.
REPRESENTATIVE STORY expressed her concern that the Public
Defender Agency (PDA) is short-staffed; therefore, issues may
not be addressed timely.
REPRESENTATIVE WOOL asked whether the implication of the
proposed legislation is that aggregating the total amount of
theft over time, increases the severity of the crime, makes the
offense "jailable," and serves as a deterrent.
REPRESENTATIVE CLAMAN replied that it serves as a tool for
prosecutors and law enforcement to aggregate crimes if they
choose to do so.
5:56:22 PM
The committee took an at-ease from 5:56 p.m. to 5:57 p.m.
5:57:36 PM
CO-CHAIR KREISS-TOMKINS stated that the motion to adopt the SS
for HB 98 is moot because SSHB 98 has not been introduced on the
House floor; therefore, the working document before the
committee is the original version of HB 98. A committee
substitute (CS) for HB 98 is forthcoming.
5:58:21 PM
The committee took an at-ease from 5:58 p.m. to 5:59 p.m.
REPRESENTATIVE CLAMAN clarified for the committee that the only
difference between the two versions is Section 4 - the
applicability provisions; the substance of the proposed
legislation will remain the same [in the forthcoming CS].
6:00:43 PM
MARGARET BERGMAN, Anchorage Police Department (APD), paraphrased
from a prepared statement as follows [original punctuation
provided]:
Good Afternoon, I am Margaret Bergman, a detective
with the Anchorage Police Department. Thank you for
the invitation to speak on behalf of House Bill 98. I
have worked with the Anchorage Police Department since
2000. I would like to address the three proposed
changes.
First, regarding the addition to the Theft in the
Second Degree statute AS11.46.130(a)(8), regarding
combining the value of property or services taken from
one or more person or commercial establishments within
a period of 180 days. I have been involved in the
Alaska Organized Retail Crime Alliance and work with
Loss Prevention. Alaska does not have Organized
Retail Crime statutes. I have worked with a
Washington police agency regarding their ORC laws and
Alliance with loss prevention. Organized Retail theft
is considered a gateway crime that often leads to
major crime rings that use the illicit proceeds to
fund other crimes. Addicts are given shopping lists
(which we often find), in exchange for drugs. The
thefts occur at large box stores, residences, and
include stolen vehicles. The shoplifting thefts are
misdemeanor level crimes and with identification of
the suspects, are charged as such to the Municipality.
The repeat suspects appear to be undeterred with the
misdemeanor charges. With the change to allow for
combining the values of property or services in the
last 180 days, this will allow the police to charge a
felony. The goal is to deter future crimes by the
suspect and reducing their criminal enterprise and
thus increasing the safety of Alaskan communities.
Second, regarding the addition to the Fraudulent Use
of an Access Device "Or identification document" AS
11.46.285 and Theft in the Second Degree AS
11.46.130(a)(7) property is an access device "or
identification document".
In 2015, Kankanton v State of Alaska, the Court of
Appeals held that a driver's license was not an access
device within meaning of theft statute under rule of
lenity. According to the Court's opinion, the
statutes defining "access device" and "identification
document" were enacted as a part of a larger bill
addressing the problem of identity theft. As part of
the same crime bill, the legislature amended other
sections of the criminal code to bring it up-to-date
with the more technologically sophisticated means
through which people improperly access the finances
and financial credit of others. The Court noted a
driver's license is specifically included in the
definition of "identification document" but is not
specifically listed as an "access device".
In 2005, House Bill 131 recognized identity theft is
on the increase in Alaska and the country. The
changes would bring penalties for such crimes closer
in line with federal criminal laws. HB 131 increased
the penalty from a Class A Misdemeanor to a class C
Felony for: 1) Theft of an access device, such as a
credit card or bank account number, 2) the crime of
fraudulent means of an access device if the value of
the property or services obtained is $50 or more, and
3) the crime of obtaining an access device or
identification document by fraudulent means.
Senate Bill 91 in essence decriminalized the felony
for Fraudulent Use of and Access Device which was made
to curb identity theft through means of an access
device or identification document. The Access Devices
or identification documents stolen during a burglary,
vehicle theft, theft or vehicle tampering and the
furtherance of those crimes by using the access device
or the information from the access device or
identification document to commit fraud and theft
crimes is a misdemeanor. A stolen credit card or a
check is rarely, if at all, used to purchase large
items (felony level). In my experience, they are used
to purchase groceries, gas, and other items from
stores. Often times, the stolen information from
identification documents is entered on a stolen check
and then used to commit fraud. This crime now has two
victims of identity theft. Returning to HB131 limits
of $50 or more will provide the police with the
ability to charge and deter the continuation of this
crime and re-victimization.
I have worked numerous financial crimes in the past
few years that I requested assistance for prosecution
from the federal government. Theft of mail,
burglaries, vehicle tamperings, and thefts (of purses
and such) have the suspects attempting to collect
Personal Identifiable Information (PII) and account
information in order to conduct fraud and identity
theft. Through my investigations, I have discovered
the suspects save the victims' PII and will use it
later (often times when the victim are [sic] unaware).
The suspects gain access to financial information of
the victims' with the use of their PII which they
obtained with identification documents, not just
access devices.
Just for reference, the Federal definition of "access
device" means "any card, plate, code, account number,
serial number, mobile identification number, personal
identification number, or other telecommunications
service, equipment, or instrument identifier, or other
means of account access that can be used, alone or in
conjunction with another access device, to obtain
money, goods, services, or any other thing of value,
or that can be used to initiate a transfer of funds
(other than a transfer originated soley [sic] by paper
instrument)."
I would like to mention that individuals now store
bank information and other PII on their cell phones as
well, and a discussion regarding how this fits into
the access device definition is worthwhile.
Regarding the addition of Possession of motor vehicle
theft tools, AS 11.46.370 to law. Stolen vehicles are
a constant reality and problem to the community.
Alaska has laws regarding possessing burglary tools,
but nothing regarding possessing motor vehicle theft
tools. I have seen shaved keys, "bump keys", old or
worn keys that are not shaved or altered but will
start a vehicle, and jiggler keys on suspects. Often
times, we will see these on individuals reported to
the police by community members as being suspicious in
a parking lot or neighborhood walking around cars.
These more than likely lead to vehicle tampering. We
also recover them on the suspects in possession of a
stolen vehicle. I would like to note that law
enforcement has received information from other states
and insurance groups regarding suspects using
electronic technology to access newer vehicles that
have key fobs. Limiting the definition to only
physical keys and not providing for these electronic
devices used may pose a problem since vehicles are
increasingly keyless.
Lastly, I would also like to mention that the State of
Alaska does not have a Conspiracy Statute that covers
property crimes. This is a problem when we are
investigating "crews" that are stealing mail, ATMs,
etc, burglarizing businesses and residences, and as a
whole working together to commit property crimes as a
group, we do not have a crime to cover everyone in the
"crew".
We need the statutes and definitions to not be
ambiguous. I have found the suspects have no concern
over the impact to the victims or the community as a
whole. I support the changes in this and it will
assist the Anchorage Police Department and I believe
other Municipalities and the State of Alaska in the
continued effort to keep their communities safe.
Thank you for your time.
6:08:22 PM
REPRESENTATIVE WOOL asked whether the access device or
identification document must be used in a certain kind of crime.
He asked about someone using another's driver's license to get
into a bar.
MS. BERGMAN answered that if the access device or identification
document is stolen, it is a crime to possess it.
REPRESENTATIVE WOOL asked whether it is currently a crime.
MS. BERGMAN replied, "No." She said that currently it is just
an access device. Kankanton v. State revealed that when the
statutes were enacted in 2000, the intent was ambiguous
regarding an identification document being considered an "access
device." She related from personal experience that bank
statements with account numbers have been used to create checks
used for forgery and fraud. A person who possesses the stolen
property, typically from someone's mail, can obtain the PII
number, create his/her own checks and identification (ID), and
commit additional crimes.
REPRESENTATIVE WOOL referred to the addicts with shopping lists
stealing from stores so they can obtain drugs. The misdemeanor
has not been a deterrent; however, aggregating the charges would
make it a felony. He asked whether, in her opinion, addicts
would be deterred by the felony charge or, as addicts, they only
respond to drugs.
MS. BERGMAN answered that it is a tough question, and the
behavior of the addicts depends on how far into addiction they
are. She stated that detectives find criminals with shopping
lists; when interviewed, the criminals describe the enterprise
of obtaining drugs; they earn 50 cents on the dollar for brand
new, in-the-box items, and they receive the earnings as a credit
towards drugs. She said that her goal is to 1) stop the crime,
and the criminal justice system provides consequences for that
purpose, and 2) stop addicts from using drugs. She expressed
her belief that the only way to stop addicts from using drugs is
through assistance; and that involves putting them in a jail.
She said that stopping the victimization of the commercial
business and the burglaries is the most important mission. She
offered that the effect that being charged with a felony would
have depends on the person. She has seen both results - someone
becoming drug free and someone who continues to use. She stated
that Alaska does not have a conspiracy law for property crimes.
Her goal is to identify the leaders of the drug enterprise;
however, sometimes it is not possible without the assistance of
the people being arrested.
6:12:41 PM
CO-CHAIR KREISS-TOMKINS asked whether there are other items in
criminal law in which having certain items on one's person is a
crime.
MS. BERGMAN answered that she is most familiar with the area of
burglary tools. She mentioned that possessing drug
paraphernalia used to be a crime but is no longer. She is
unaware of other items that are comparable in criminal law.
CO-CHAIR KREISS-TOMKINS announced that HB 98 would be held over.