Legislature(2019 - 2020)GRUENBERG 120
04/24/2019 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB145 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 145 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 145-PROPERTY CRIME; MOTOR VEHICLE THEFT TOOLS
1:28:15 PM
CHAIR CLAMAN announced that the only order of business would be
HOUSE BILL NO. 145, "An Act relating to crime and criminal
procedure; establishing the crime of possession of motor vehicle
theft tools; relating to controlled substances; relating to
credit toward a sentence of imprisonment; relating to
sentencing; relating to registration of sex offenders; relating
to the definition of 'sex offender or child kidnapper'; relating
to operating under the influence; relating to refusal to submit
to a chemical test; relating to the duties of the commissioner
of corrections; relating to the Alaska Criminal Justice
Commission; relating to the duties of the attorney general and
the Department of Law; requiring law enforcement agencies to
test sexual assault examination kits; requiring notification of
completion of testing; relating to reports on untested sexual
assault examination kits; and relating to public disclosure of
information relating to certain minors."
1:29:17 PM
LIZZIE KUBITZ, Staff, Representative Matt Claman, Alaska State
Legislature, conducted a sectional analysis of HB 145. She
paraphrased from a prepared statement, which read as follows
[original punctuation provided]:
HB 145 version U - Sectional Summary
Section 1
AS 11.41.110(a) Murder in the second degree.
Conforming amendment. Amends AS 11.41.110(a) to
reflect the changes made in Section 28.
Section 2
AS 11.41.150(a) Murder of an unborn child.
Conforming amendment. Amends AS 11.41.150(a) to
reflect the changes made in Section 28.
Section 3
AS 11.41.432(a) Defenses.
Removes marriage as a defense if the person engages in
sexual activity with their spouse when they know their
spouse is incapacitated or unaware that the sexual act
is being committed.
Because of the complex legal and factual issues that
may arise, the defense of marriage still applies in
situations where a spouse is the caretaker of their
partner who is "mentally incompetent" with dementia or
Alzheimer's, or is mentally ill, but still consents to
the contact.
A person who is incapacitated or unaware that a sexual
act is being committed is legally and factually unable
to consent to sexual activity. In most other
circumstances, unless specifically excluded by statute
or case law, consent remains a defense to sexual
assault.
Section 4
AS 11.46.130(a) Theft in the second degree.
Conforming amendment. Amends AS 11.46.130(a) to
reflect a change made in Section 11.
Section 4 also removes inflation adjustment for theft
in the second degree.
Sections 5 -10
AS 11.46.140(a), -.150(a), -.220(c), -.260(b), -
.270(b), -.280(d)
Removes inflation adjustment from property crime
statutes.
Section 11
AS 11.46.285 Fraudulent use of an access device or
identification document.
Amends AS 11.46.285, the statute related to fraudulent
use of an access device, to include theft of an
identification document. This clarification addresses
a gap in the statute identified in Kankanton v. State,
342 P.3d (Alaska Ct. App. 2015). With the amendment,
the offense will include fraudulent use of both an
access device and an identification document.
The amendment also restructures the offense levels to
a class B felony if the theft using an access device
or identification document is $25,000 or more, a class
C felony if the theft is $75 or more and less than
$25,000, and a class A misdemeanor if the theft is
less than $75. These financial levels for Fraudulent
Use of an Access Device or Identification Document are
different from the financial levels for Theft in the
Second Degree (AS 11.46.130: $750 to $25,000), Theft
in the Third Degree (AS 11.46.140: $250 to $750), and
Theft in the Fourth Degree (AS 11.46.150: less than
$250) because the impact on the victim of identity
theft is more serious than the effect on a victim of
theft. In addition, the requirement of proof of intent
to defraud in AS 11.46.285 is a more serious
culpability than intent to deprive another of property
in AS 11.46.100.
The crime of fraudulent use of an access device was
first enacted in 1978, however, there were no dollar
amounts included in this initial version of the
offense. The statute was amended in 2000, at which
time the legislature specified that if the value of
property or services taken was less than $50, the
offense would be a class B misdemeanor; if the value
of property or services taken was $50 or more but less
than $500, it was a class A misdemeanor; if the value
of property or services taken was $500 or more but
less than $25,000, it was a class C felony; and
anything over $25,000 would be a class B felony.
In 2005, the legislature made additional changes to
crimes involving the theft of access devices in HB
131. First, the crime of theft in the second degree
was amended to include the theft of an access device.
At that time, the taking of an access device,
regardless of whether it was used, was made a class C
felony. Second, the felony level threshold for
fraudulent use of an access device was reduced to $50
or more.
According to testimony provided in committee on HB
131, these types of offenses had increased 100 percent
nationwide. Some states had lowered or eliminated the
value level needed for a felony level threshold for
these types of offenses. When comparing the fifty-
dollar threshold to other crimes in Alaska, it was
noted that the crime of forgery is a felony regardless
of the amount that is forged. Thus, if a person forges
a check for five dollars, that conduct is a felony.
In 2014, the legislature again amended the felony
threshold for fraudulent use of an access device and
brought it up to $750. This change brought the felony
level threshold in line with other property offenses
that were amended at the same time. Since 2014, the
felony level threshold for property offenses has
changed a couple of
times and is currently $750.
Section 4 also removes inflation adjustment.
Section 12
AS 11.46.295 Prior convictions.
Amends the application of "prior convictions" under AS
11.46.295 to apply to theft in the third degree in
determining the existence of prior convictions in the
recidivist theft statutes.
Section 13
AS 11.46.360(a)
Removes inflation adjustment for vehicle theft in the
first degree.
Section 14
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, which is
also a class A misdemeanor.
In addition to mechanical tools used to unlock a motor
vehicle, the amendment also includes an lectronic
unlocking device" as a motor vehicle theft tool.
"Electronic unlocking devices" are devices used to
capture the electronic signals from key fobs and other
electronic locking systems to unlock a motor vehicle
without permission. The amendment does not include a
screwdriver as a motor vehicle theft tool, just as a
screwdriver is not a burglary tool in AS 11.46.315.
Sections 15-20
AS 11.46.482(a), -.484(a), -.486(a), -.530(b), -
.620(d), -.730(c)
Remove inflation adjustment from property crime
statutes.
Section 21
AS 11.46.980 Determination of value; aggregation of
amounts.
Adds a new subsection (e) to AS 11.46.980 that 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 one or more
persons or commercial establishments.
Under current law, the prosecution aggregates the
theft amounts when it can prove that the defendant or
defendants committed the criminal acts "under one
course of conduct." AS 11.46.980(c), see Buckwalter v.
State, 23 P.3d 81 (Alaska Ct. App. 2001). This
amendment to the statutes does not require proof of a
single course of conduct and, instead, requires proof
that the crimes occurred within 180 days and were from
one or more persons or commercial establishments.
Section 22
AS 11.56.810(a) Terroristic threatening in the
second degree.
Amends the second degree terroristic threatening
statute AS 11.56.810(a) to cover an individual who
knowingly threatens to commit a crime against a person
or property and recklessly disregards the risk that
the threats will cause the evacuation of a building,
will cause serious public inconvenience, or will place
the public or a substantial group of the public in
fear of serious physical injury. The amended statute
covers real threats of violence as well as false
threats.
Terroristic threatening in the second degree is
directed at threats that, if carried out, are likely
to affect a substantial number of people. Threats to
schools, trains, buses, airplanes, businesses, and
offices are examples reflected in tragic events over
the past 25-30 years. The amended statute addresses
conduct that is usually different from assault in the
third degree, AS 11.41.220(a)(1)(A), which addresses a
person placing another person "in fear of imminent
serious physical injury by means of a dangerous
instrument," and AS 11.41.220(a)(2), which addresses
"repeated threats to cause death or serious physical
injury to another person." Both terroristic
threatening in the second degree and assault in the
third degree are class C felonies.
Section 23
AS 11.61.123(a) Indecent viewing or photography.
Separates "production" from "viewing" in the crime of
viewing or production of an indecent picture, making a
distinction between in-person viewing and viewing of
an indecent picture. Increases the age at which a
person can consent to having these pictures taken of
themselves from 13 years of age to 16 years of age.
Section 24
AS 11.61.123(c) Indecent viewing or photography.
Conforming amendment. Changes the word "photography"
to "production of pictures."
Section 25
AS 11.61.123(d) Indecent viewing or photography.
Conforming amendment. Changes the word "photography"
to "production of pictures.
Section 26
AS 11.61.123(f) Indecent viewing or photography.
Classification section. Makes production of an
indecent picture of a person under the age of 16 a
class B felony (which will be sentenced as a sexual
felony in Section 38); makes viewing an indecent
picture of a person under the age of 16 a class C
felony; makes production of an indecent picture of an
adult a class C felony; and makes viewing of an
indecent picture of an adult a class A misdemeanor.
Child Adult
Viewing Class C Class A
AS Felony Misdemean
11.61.123(a)Registeraor
(1) ble Sex
Offense
Production Class B Class C
AS Sexual Felony
11.61.123(a)Felony Registera
(2) Registerable Sex
ble Sex Offense
Offense
Section 27
AS 11.61.123 Indecent viewing or photography.
Adds a new subsection (g) to AS 11.61.123 to provide a
defense to the crime of Indecent Viewing or Production
of a Picture.
A defense requires some evidence to put the defense in
issue, and then the prosecution "has the burden of
disproving the existence of the defense beyond a
reasonable doubt." AS 11.81.900(b)(19).
Section 28
AS 11.71.025 Misconduct involving a controlled
substance in the second degree.
Creates an additional tier of drug offense (a class A
felony) for possession with intent to manufacture or
deliver large quantities of schedule IA controlled
substances, which include opiates and heroin, and
schedule IIA controlled substances, which include
methamphetamines.
The higher felony level for this controlled substance
offense is directed at dealers and distributors, and
not at the possession level. In Alaska, the federal
government prosecutes the majority of large quantity
drug dealers. The penalties in federal court for
similar quantities are greater than the penalties in
this amendment. This class A felony offense would give
state prosecutors an option for prosecuting large-
quantity drug dealers when federal prosecutors may
decline the case.
Section 29
AS 11.71.030(a) Misconduct involving a controlled
substance in the second degree.
Conforming amendment. Amends AS 11.71.030(a) to
reflect the changes made in Section 28.
Section 30
AS 11.71.030(d) Misconduct involving a controlled
substance in the second degree.
Conforming amendment. Amends AS 11.71.030(d) to
reflect the changes made in Section 28.
Section 31
AS 11.71.040(a) Misconduct involving a controlled
substance in the third degree.
Conforming amendment. Amends AS 11.71.040(a) to
reflect the changes made in Section 28.
The bill further amends subsection (a) by establishing
a basis to prosecute repeat offenders of possession of
any amount of schedule IA or IIA controlled substances
(such as opiates, heroin, and methamphetamine) at the
class C felony level. Specifically, a person commits a
felony if they possess any amount of a schedule IA or
IIA drug and they have been previously convicted two
or more times of drug possession of a schedule IA or
IIA controlled substance, either as a felony or as a
misdemeanor as described in the statute.
This amendment also confirms that certain possession
felonies are not affected by this new provision:
felony possession of heroin/opiates near a school (AS
11.71.030(a)(3)) and felony possession of date rape
drugs (AS 11.71.040(a)(3)).
Section 32
AS 11.71.040(d) Misconduct involving a controlled
substance in the fourth degree.
Conforming amendment. Amends AS 11.71.040(d) to
reflect the changes made in Section 28.
Section 33
AS 11.71.050 Misconduct involving a controlled
substance in the fifth degree.
Two conforming amendments. First, the bill amends AS
11.71.050 to reflect the changes made in Section 28.
Second, the bill amends AS 11.71.050(a)(4) by adding
the new paragraph of Section 31 above (AS
11.71.040(a)(12)) into the list of exemptions of what
constitutes misdemeanor drug possession.
Section 34
AS 11.71.060 Misconduct involving a controlled
substance in the sixth degree.
Conforming amendment. Amends AS 11.71.060 to reflect
the changes made in Section 28.
Section 35
AS 11.71.311(a) Restriction on prosecution for
certain persons in connection with a drug overdose.
Two conforming amendments. First, the bill amends AS
11.71.311(a) to reflect the changes made in Section
28. Second, the bill amends AS 11.71.311(a) by adding
the new paragraphs of Section 28 (AS 11.71.025) and
Section 34 (AS 11.71.040(a)(12)) into the list of
crimes that may not be prosecuted if that person
sought in good faith either medical or law enforcement
aide for another person they believed to be having a
drug overdose.
Section 36
AS 12.55.027 Credit for time spent toward service of
a sentence of imprisonment.
Adds a new subsection (a) to read:
"A court may only grant credit for time spent toward
service of a sentence of imprisonment under this
section if the court finds that the sentence,
including any credit toward the sentence of
imprisonment, meets the requirements of AS 12.55.005."
In State v. Justin Schneider, it appears that the
prosecution and the court may not have understood the
legislature intent when it passed HB 15 in 2015.
During the House Judiciary Hearing on HB 15 on March
23, 2015, from approximately 1:46 p.m. to 1:53 p.m.,
Representative Wilson confirmed that the courts should
not be required to grant jail credit for time in
treatment or on electronic monitoring credit simply
because the defendant had completed treatment or had
not committed any crimes while on electronic
monitoring. Rep. Wilson confirmed that her intent, as
the bill sponsor, was that judges should not be
required to grant credit for electronic monitoring.
Rep. Claman then discussed a proposed amendment that
would change the word "shall" in AS 12.55.027(d) to
"may." As Rep. Claman explained, a judge could decline
to grant credit for electronic monitoring or drug
treatment in some cases based on the specifics of that
case and grant jail credit in many other casesall
depending on the specific circumstances. Rep. Claman
then moved an amendment that changed "shall" to "may."
The amendment passed without objection, and the "may"
language is now incorporated in AS 12.55.027(d).
The reason to add the new subsection (a) to AS
12.55.027 is to make sure that all parties understand
that the sentencing court has discretion in
determining whether to grant credit for time spent
toward service of a sentence. Specifically, before
granting any credit, the court must consider and apply
the sentencing criteria set forth in AS 12.55.005 and
announced by the Alaska Supreme Court in State v.
Chaney, 477 P.2d 441 (Alaska 1970) to the question of
whether to grant credit for time spent on electronic
monitoring or a treatment program.
Section 37
AS 12.55.125(d) Sentences of imprisonment for
felonies.
Amends AS 12.55.125(d) by increasing the presumptive
sentencing range for first-time class B felony
offenders from 0 to 2 years to 90 days to 2 years.
This section also adds enhanced felony sentences for
making or possessing with intent to manufacture
methamphetamine in a home or lodging where children
live or engaging children in the manufacture of
methamphetamine.
Section 38
AS 12.55.125(i) Sentences of imprisonment for
felonies.
Amends AS 12.55.125(i), which establishes sentences
for sexual felonies, to add conforming language to
reflect the changes made in Sections 23-26.
Section 39
AS 12.55.135(a) Sentences of imprisonment for
misdemeanors.
Amends AS 12.55.135(a)(2) by increasing the maximum
sentence for some class A misdemeanors from 30 to 90
days.
The amendment is intended to give judges greater
discretion in sentencing individuals convicted of
misdemeanor charges.
Section 40
AS 12.55.135(b) Sentences of imprisonment for
misdemeanors.
Amends AS 12.55.135(b)(1) by increasing the maximum
sentence for some class B misdemeanors from 10 to 30
days.
The amendment is intended to give judges greater
discretion in sentencing individuals convicted of
misdemeanor charges.
Section 41
AS 12.55.135(n) Sentences of imprisonment for
misdemeanors.
Conforming amendment. Amends AS 12.55.135(n) to
reflect the changes made in Section 28.
Section 42
AS 12.55.185(16) Definitions.
Conforming amendment. Amends AS 12.55.185(16) to add
viewing or production of an indecent picture under AS
11.61.123(f)(1) or (2) to the definition of "sexual
felony
Section 43
AS 12.63.010(d) Registration of sex offenders and
related requirements.
Conforming amendment. Amends AS 12.63.010(d) to
reflect the changes made in Section 45.
Section 44
AS 12.63.010 Registration of sex offenders and
related requirements.
Clarifies that a person may petition the Department of
Public Safety for removal from the registry if the
petitioner submits proof acceptable to the department
that the facts underlying the conviction in another
jurisdiction do not constitute a sex offense or child
kidnapping in Alaska.
Currently, in at least 13 states, an indecent exposure
conviction for public urination can trigger sex
offender registration requirements. Of those states,
two limit registration to those who committed the act
in view of a minor. This amendment is intended to
provide an option to petition the department to "opt-
out" of registering if the conduct would not be a sex
crime in Alaska.
Section 45
AS 12.63.020 Duration of sex offender or child
kidnapper duty to register.
Amends AS 12.63.020 to clarify that a person who is
convicted of an offense as an adult and required to
register as a sex offender or child kidnapper in
another jurisdiction is also required to register as a
sex offender in Alaska.
Section 46
AS 12.63.100(6) Definitions.
Amends AS 12.63.100(6) to add a person who is
convicted of an offense as an adult and required to
register as a sex offender or child kidnapper in
another jurisdiction to the definition of "sex
offender or child kidnapper."
Section 47
AS 18.65.087(d) Central registry of sex offenders.
Amends AS 18.65.087(d) to require the Department of
Public Safety to review procedures and adopt
regulations to allow individuals with sex offense
convictions in another state to petition for removal
from the registry because the facts underlying the
out-of-state conviction do not constitute a sex
offense or child kidnapping in Alaska.
Section 48
AS 18.65.087(j) Central registry of sex offenders.
Conforming amendment. Amends AS 18.65.087 to reflect
change made in Section 46.
Section 49
AS 28.35.030(o) Operating a vehicle, aircraft, or
watercraft while under the influence of an alcoholic
beverage, inhalant, or controlled substance.
Amends AS 28.35.030(o) to allow the Division of Motor
Vehicles to restore a driver's license if a person has
had no driving-related offenses in the 10-year period
before applying for the restoration of their license.
A license may not be restored if the revocation was
ordered in a case in which the person was also
convicted of a crime where homicide, assault in the
first and second degree, or assault of an unborn child
was involved.
Section 50
AS 28.35.032(q) Refusal to submit to chemical test.
Amends AS 28.35.032(q) to allow the Division of Motor
Vehicles to restore a driver's license if a person has
had no driving-related offenses in the 10-year period
before applying for the restoration of their license.
A license may not be restored if the revocation was
ordered in a case in which the person was also
convicted of a crime where homicide, assault in the
first and second degree, or assault of an unborn child
was involved.
Section 51
AS 33.30.011(a) Duties of commissioner.
Amends AS 33.30.011(a) by changing the minimum term of
imprisonment in which the Department of Corrections
must conduct a risk assessment and prepare a written
case plan to 90 days.
Further, it amends AS 33.30.011(a)(9) to require the
Department of Corrections to coordinate with community
reentry coalitions or other providers of reentry
services when developing a written reentry plan for
prisoners.
Finally, it creates a new subsection AS
33.30.011(a)(12), that requires regular reports on
offender management plan implementation that includes
the number of prisoners provided written case plans,
the number of written case plans initiated within the
preceding year, and the number of written case plans
that were updated in the preceding year.
Section 52
AS 34.03.360(7) Definitions.
Conforming amendment. Amends AS 34.03.360(7) to
reflect the changes made in Section 28.
Section 53
AS 44.19.647(a) Annual report and recommendations.
Amends AS 44.19.647(a) by adding a requirement that
the Alaska Judicial Council include the data collected
by the Department of Law as described in Section 58 in
their annual report.
Section 54
AS 44.23.020(k) Duties; and powers; waiver of
immunity.
Amends AS 44.23.020 by adding a new subsection (k)
that requires the Department of Law to develop a
method to track certain information and to report
about sex offense complaints and disposition of those
cases.
Section 55
AS 44.23.040(b) Records, reports, and
recommendations on uniform laws.
Amends AS 44.23.040 by adding a new subsection (b)
that requires the Department of Law to gather and
report data to the Alaska Judicial Council on felony
sex offenses including the number reported but not
referred for prosecution, the number referred for
prosecution that were not prosecuted, and the number
prosecuted that resulted in a conviction of a crime
other than a sex offense.
Section 56
AS 44.41.065 Sexual assault examination kits.
Adds a new section AS 44.41.065 to: (1) require that
within 30 days after collection of a sexual assault
kit, it is sent to an accredited lab or Department of
Public Safety operated laboratory facility; (2) ensure
that the sexual assault kit undergoes testing within
one year of the laboratory receiving the kit; and (3)
within two weeks following completion of testing,
reasonable effort will be made to notify the victim
that testing occurred. Failure to meet this timeline
will not cause a case to be dismissed and if a case is
resolved prior to testing, it is no longer required.
Section 57
AS 44.41.070(a) Report on untested sexual assault
examination kits.
Requires the Department of Public Safety to include
additional data about which kits were ineligible for
testing and why.
Section 58
AS 44.41.070(b) Report on untested sexual assault
examination kits.
Conforming amendment. Amends AS 44.41.070(b) to
reflect change made in Section 57.
Section 59
AS 44.41.070 Report on untested sexual assault
examination kits.
Adds a new subsection (e) that includes the
definitions of why a sexual assault kit may be
ineligible for testing: it is scientifically unviable,
is ineligible for CODIS (Combined DNA Index System, a
national program that links crimes to DNA) or is an
anonymous kit.
Section 60
AS 47.12.315(a) Public disclosure of information in
department records relating to certain minors.
Conforming amendment. Amends AS 47.12.315(a) to
reflect the changes made in Section 28.
Section 61
Repealer Section: Removes the inflation adjustments.
Section 62
Applicability Provisions: This Act applies to offenses
committed on or after the effective date.
Section 63
Uncodified Law
2:01:26 PM
REPRESENTATIVE WOOL asked whether public urination is a sex
crime in Alaska.
MS. KUBITZ said it is not, though it is a sex crime in some
other states. She explained that if HB 145 becomes law, an out-
of-state sex offender who was convicted of crimes related to
public urination would have to register in Alaska. She noted
that HB 145 would provide an opt-out should the Department of
Public Safety (DPS) verify that the sex offense does not apply
to the laws in Alaska.
2:02:45 PM
REPRESENTATIVE EASTMAN noted that amendments to HB 145 are due
in less than 48 hours. He asked why.
CHAIR CLAMAN answered, Thats the schedule were on so we can
move crime bills.
2:03:09 PM
REPRESENTATIVE KOPP referenced section 28, which would create
the crime of misconduct involving a controlled substance in the
second degree. He said he likes the idea of establishing
prosecutable levels for trafficking and noted that it is
something law enforcement has requested. He asked a question
about state and federal prosecutors and whether HB 145 would
change how they operate with each other.
CHAIR CLAMAN noted that representatives from the Department of
Law (DOL), who were not able to attend this meeting, would be
able to provide a more detailed answer. He said it is his
understanding that the federal government tends to prosecute
large possession offenses, though DOL would like the option to
do it themselves should the federal government elect not to
prosecute.
REPRESENTATIVE KOPP said he is glad that misconduct involving a
controlled substance in the second degree would be a class A
felony. He said he is also pleased that repeat drug possession
offenders would be guilty of a felony.
CHAIR CLAMAN noted that it was Representative Kopp's idea to
make it so.
REPRESENTATIVE KOPP said it would introduce a higher level of
accountability and deal with the gray area of possession and
trafficking. He remarked that prosecutors would have a tool to
address the behavior associated with repeat possession offenses.
2:05:42 PM
REPRESENTATIVE EASTMAN asked if indecent exposure is currently a
sex crime [in Alaska].
MS. KUBITZ said she would have to research the answer. She said
she believes there are criminal penalties for indecent exposure
but noted that she is unsure where it falls.
REPRESENTATIVE KOPP said indecent exposure in the first degree,
which is covered in AS 11.41.458, is when the offender exposes
his/her genitals in the presence of another person with reckless
disregard that the act is offensive, insulting, or frightening
to the victim. He noted that the crime is a class B
misdemeanor. He added that the conduct becomes indecent
exposure in the second degree when the victim is under 16 years
of age. He noted that indecent exposure in the second degree is
a class A misdemeanor. He stated that, as a misdemeanor,
indecent exposure is not a registerable offense.
REPRESENTATIVE EASTMAN asked which sections of the bill deal
with the Criminal Justice Commission.
MS. KUBITZ asked if he was referring to the Alaska Criminal
Justice Commission or the Alaska Judicial Council (AJC).
REPRESENTATIVE EASTMAN clarified that he meant the Alaska
Criminal Justice Commission.
MS. KUBITZ said she is only aware of sections that relate to the
AJC. She noted that the Alaska Criminal Justice Commission is
under AJC. She said she would have to review those sections to
determine whether the Alaska Criminal Justice Commission is
specifically mentioned.
2:08:21 PM
REPRESENTATIVE WOOL noted that HB 145 would impose a mandatory
minimum sentence of 30 days for first-time class B felony
offenses. He asked for examples of class B felonies.
CHAIR CLAMAN clarified that the presumptive sentence for class B
felonies would be 90 days.
REPRESENTATIVE WOOL acknowledged the clarification. He said the
bill would change the presumptive sentence range from 0 to 2
years to 90 days to 2 years.
CHAIR CLAMAN said theft in the first degree and assault in the
second degree are class B felonies. He added that some sex
offenses are also of that category but are sentenced under a
different framework.
REPRESENTATIVE KOPP mentioned that sexual abuse of a minor in
the second degree is a class B felony. He clarified that
assault in the second degree relates to situations in which a
serious physical injury is caused or is attempted.
CHAIR CLAMAN noted that HB 145 would make the crime of
misconduct involving a controlled substance in the third degree
a class B felony. He said misconduct involving a controlled
substance in the second degree is currently a class B felony,
but HB 145 would change it to a class A felony.
2:10:44 PM
REPRESENTATIVE WOOL addressed section 31. He noted that HB 145
would make three instances of simple possession a felony. He
asked whether a violation committed by someone at age 20 would
be held against him/her should he/she violate again at the age
of 45.
REPRESENTATIVE KOPP stated, Those are just policy calls. He
said Representative Wools point is valid and that the committee
could discuss what the time bars should look like.
CHAIR CLAMAN mentioned that, presently, HB 145 contains no time
bars.
REPRESENTATIVE WOOL noted that the crime of driving under the
influence (DUI) has a time bar.
REPRESENTATIVE KOPP confirmed that.
2:12:23 PM
REPRESENTATIVE WOOL addressed section 26 and the [indecent
viewing] of a picture of an adult, which the bill would make a
class A misdemeanor. He asked for an explanation.
REPRESENTATIVE KOPP said indecent viewing is defined. He said
he would look it up.
REPRESENTATIVE WOOL asked about the same offense but as relates
to children. He noted that HB 145 would change the age of
consent from 13 years of age to 16 years of age. He asked about
innocuous situations in which parents take photos of their
children when the children are not fully clothed.
REPRESENTATIVE KOPP said there is a defense for normal
caretaking or parenting activities. He said those activities
are exempted.
CHAIR CLAMAN pointed to section 27. He said the exact language
is the acts occurred as part of the normal caretaker
responsibilities for a child, interactions with a child, or
affection for a child. He referenced a discussed hypothetical
situation involving three 15-year-old high schoolers who, with
parental permission, go skinny dipping in a lake and take
pictures of each other. He said as long as the kids have
permission, then that is generally okay. But, he noted,
somebody at edge of the lake hiding behind a tree with a long
telephoto lens would not have that permission and would be
treated differently.
2:14:53 PM
REPRESENTATIVE KOPP, in response to an earlier question by
Representative Eastman, noted that an offense must be a felony
for it to be a registerable sex crime. He remarked that
indecent exposure, when combined with a sexual act such as
masturbation, could qualify as a felony. He clarified that this
would be treated differently from simple indecent exposure.
2:15:34 PM
REPRESENTATIVE EASTMAN addressed section 31. He asked as to the
rationale for specifically ensuring date rape drugs are not
affected by changes to the law.
REPRESENTATIVE KOPP said possession of date rape drugs is always
a felony under any circumstance, which explains why there is a
carve-out for them in the bill.
2:16:25 PM
REPRESENTATIVE LEDOUX addressed the previously-mentioned example
of teenage skinny dippers. She asked what would happen if
pictures of the event were posted on Facebook.
CHAIR CLAMAN said that raises complicated issues relating to
modern society and the question of permission.
REPRESENTATIVE LEDOUX said that is the question she is asking.
She noted that, at some point, the court might look into that
question and will look back on the bill and the committees
discussion.
CHAIR CLAMAN said it is a good question. He noted that
internet viewing of an indecent picture is already a crime
under current statute. He observed that the same prosecutorial
challenges faced today would be faced in the future should HB
145 become law.
REPRESENTATIVE LEDOUX said, Lets say its illegal ... to post
something on the internet. What about all the people who see
it? She asked if SOA would prosecute every individual who
views the picture via the Facebook news feed.
REPRESENTATIVE KOPP noted that the key element for the
prosecution is the wording knowingly view. He said
knowingly means the viewer must have some type of knowledge
that the image was done without the consent of the person who is
being depicted and probably was never authorized to begin with.
He said the example of a mutual friend viewing a photo on
Facebook would be difficult to prosecute unless it can be shown
that the viewer had specific knowledge that the image was
wrongfully posted and without consent. He explained that there
is a sum total of circumstances necessary for an act to be a
violation.
2:20:10 PM
REPRESENTATIVE WOOL noted that a viewer cannot discern whether
consent for a picture was given simply through viewing it. He
said it is easy to view things of unknown origin through social
media, texts, and Snapchat. He spoke to the difficulty of
proving intent in such a situation.
CHAIR CLAMAN commented that the topic contains a lot of gray
areas. He noted that the language which would raise the age of
consent from 13 to 16 was lifted from a bill offered by Governor
Michael J. Dunleavy. Under the current law, he explained, a 14-
year-old could consent to a person taking a picture of him/her.
He said the proposed change would require a parent to give
permission to post a picture.
REPRESENTATIVE LEDOUX asked if that means there could be a
situation in which a 14- or 15-year-old and his/her parent could
consent to posting a nude photo on Facebook.
CHAIR CLAMAN clarified that the consent relates to the creation
of the picture, not the posting of the picture. He returned to
the skinny-dipping example and explained that, under current
law, the three 15-year-olds could all consent mutually without a
parents input to take pictures of each other. The proposed
change, he said, would require parental consent for those
pictures to be taken.
2:22:49 PM
REPRESENTATIVE WOOL questioned how HB 145 would affect sexting.
He wondered whether a 15-year-old who sexts a picture of
themselves to somebody else would be committing a crime. He
added that the receiver would also be committing a crime,
regardless of whether he/she wanted to view the photo or not,
because the person depicted is under the age of 16. He noted
that under current law, this would all be legal. He noted as
well that sexting is a common practice.
2:23:51 PM
REPRESENTATIVE EASTMAN asked for a definition of "production,
as the term appears often in the bill. He asked if it would
include a case in which someone attaches an image to an e-mail
or posts an image to a website.
CHAIR CLAMAN said the language from this part of HB 145 comes
from the governor's bill. He said he believes the term is
intended to cover a broader range of production, including the
production of an image on a computer. He deferred to DOL for a
more thorough answer to the question.
2:24:58 PM
REPRESENTATIVE LEDOUX said she is not sure she wants to make it
a felony for a child to transmit a photo of themselves via text
message. She said it is weird that it would not be a crime if
the parents consented to it. She commented that a parent would
have to be pretty weird to give consent.
CHAIR CLAMAN said that is why the question of 13 years of age
versus 16 years of age is a significant policy question. He
said the notion that parents have complete control over what
their teenagers do is far from reality.
REPRESENTATIVE LEDOUX commented that if a child requests
permission from a parent to take a naked photo of
himself/herself and transmit it via Instagram, and the parent
consents, then there is something wrong there.
REPRESENTATIVE KOPP remarked that it is hard to legislate common
sense. He noted that the examples provided involving teenagers
would all qualify as juvenile offenses which would be handled by
a juvenile court. He said the aim of juvenile court is early
intervention. He acknowledged that the conduct described would
be violative by the literal definition of the law. He remarked
that a statute addressing the topic of 14-year-olds sexting
could be useful to a teacher or school administrator who becomes
aware of the conduct. He said these examples demonstrate how
technology makes more sharing possible. On the topic of
Representative Eastmans question about production, he noted
that the posting of an image on the internet would fall under
distribution of child porn, as it would make the image
accessible to millions as opposed to part of one-on-one
correspondence. He said distribution is a felony.
REPRESENTATIVE WOOL referenced an incident in another state in
which sexted images were spread across a high school, resulting
in hundreds of students being charged.
2:28:42 PM
MS. KUBITZ, in response to an earlier query by Representative
Eastman, noted that section 53 refers to the duties of the
Alaska Criminal Justice Commission. She said the section would
require that the commission include DOL data in its annual
report to the legislature.
REPRESENTATIVE EASTMAN said that seems a little bit
duplicative. He asked for verification that the section would
require DOL to generate a report but not send it so that the
commission can send it instead.
MS. KUBITZ said that is her understanding. She said questions
related to section 53 would be better answered by DOL because
the language was pulled from a different crime bill introduced
by the governor.
CHAIR CLAMAN added that these sections came from proposals
that were introduced by Senator Shelley Hughes. He noted that
DOL is not currently required to provide an annual report to the
legislature, but the Alaska Criminal Justice Commission is
required to submit a report. He suggested the language reflects
the reality that it is simpler to ask DOL to submit its
information through the commissions alreadyin-existence
reporting structure.
REPRESENTATIVE EASTMAN said he noticed that various sections of
HB 145 come from bills submitted by the governor. He asked if
the governor was consulted during the development of HB 145.
CHAIR CLAMAN said DOL was consulted about different features of
the bill and that DOLs input is reflected in portions of the
bill.
2:31:38 PM
CHAIR CLAMAN, after ascertaining that there were no additional
questions, announced that HB 145 would be held for further
review.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB145 ver U 4.24.19.PDF |
HJUD 4/24/2019 1:00:00 PM HJUD 4/25/2019 5:15:00 PM HJUD 4/26/2019 1:00:00 PM |
HB 145 |
| HB145 Sponsor Statement ver U 4.24.19.pdf |
HJUD 4/24/2019 1:00:00 PM HJUD 4/25/2019 5:15:00 PM HJUD 4/26/2019 1:00:00 PM |
HB 145 |
| HB145 Sectional Analysis ver U 4.24.19.pdf |
HJUD 4/24/2019 1:00:00 PM HJUD 4/25/2019 5:15:00 PM HJUD 4/26/2019 1:00:00 PM |
HB 145 |