Legislature(2017 - 2018)GRUENBERG 120
02/23/2018 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB330 | |
| HB259 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | HB 259 | TELECONFERENCED | |
| += | HB 330 | TELECONFERENCED | |
HB 259-CONFINING VEHICLE LOADS
1:39:38 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 259, "An Act relating to containing or confining
loads being transported on highways." [Before the committee was
CSHB 259(TRA).]
1:40:10 PM
MATT GRUENING, Staff, Representative Louise Stutes, Alaska State
Legislature, offered his testimony as follows [original
punctuation provided]:
Whether someone overflows the bed of their truck with
rocks and gravel, plywood, scrap metal, loose debris
on their way to the dump, or simply fails to tie down
large objects in a flatbed, unsecured loads are an
undisputed hazard to other users of the roadway and
pedestrians. Improperly secured loads can cause
serious injuries, property damage, and fatalities.
The AAA Foundation for Traffic Safety concluded that
from 2011-2014, road debris was a factor in more than
200,000 police-reported crashes. Those crashes
resulted in approximately 39,000 injuries and 500
deaths. Additionally, the report found that about two-
thirds of these accidents were the result of items
falling from a vehicle due to unsecured loads and
improper maintenance. In another study by the U.S
Government Accountability Office, it was found that
there were approximately 440 fatalities caused by
roadway debris in 2010; that data was gathered by the
National Highway Traffic Safety Administration.
All 50 states have laws that require drivers to
properly secure loads in any vehicle or trailer and
impose fees that range from $10 to $5,000. In most
states, failing to properly secure a load is a traffic
violation. In Alaska, even if it results in the
serious physical injury, it is an infraction
punishable by a fine not to exceed $300. However, 15
states have instituted possible criminal penalties for
failing to properly secure loads. I would also like to
note that there is a legislative research report in
members' packets that compares those laws and provides
additional information about Maria's law, which this
legislation closely resembles.
Last year, the State of Alaska, the Mayor of
Anchorage, the Anchorage Assembly, the Mayor of the
Mat-Su Borough, and the Mat-Su Borough Assembly
officially declared June 6th as Secure Your Load Day
by issuing proclamations and resolutions recognizing
the hazards of failing to take the simple steps of
securely affixing every load. These documents are
included in members' packets.
HB 259 increases Alaska's standards for load
securement of all types of materials and requires
covering or maintaining six inches of freeboard with
loads consisting of sand, dirt, gravel, rock, or
similar materials. It also raises a violation to the
level of a Class A misdemeanor on the first offense if
it results in the serious physical injury to another
person or causes $1,000 or more in property damage.
The legislation will decrease roadway litter, property
damage, injuries, and fatalities on Alaska's highways.
It is a responsible measure to protect the safety of
Alaskan drivers and avoid costly repairs that result
from the actions or inactions of others.
As invited testimony today, I have Robin Abel and
Kelly Roy online for testimony. Robin is not only a
nationwide expert and advocate regarding load
securement, but she is also the mother of the Maria
Federici, who is the namesake of "Maria's Law" in
Washington State. Robin's 24-year-old daughter, Maria,
was struck by piece of particle board that escaped
from the back of a trailer in front of her. She was
nearly decapitated as the debris crushed every bone in
her face, leaving her blind. Miraculously, she
survived.
At the time, there was no law addressing the
consequences of unsecured loads and the driver was
cited for a traffic infraction and fined. Robin has
dedicated her life to changing the law, educating the
public, and doing whatever she can to avoid this from
happening to others.
Thanks to Robin's efforts, Washington legislators
adopted what has been called "Maria's Law," which
criminalizes a person's failure to properly secure a
load that results in injury or death. She has been
leading education and law changing efforts across the
country, but I will let her speak to the rest of her
story.
Also, for invited testimony, we have Kelly Roy, who is
an Alaskan who experienced a very similar tragedy to
Maria and is also fortunate to be alive, but I will
let her tell her story personally to the committee. In
the previous committee, Kelly flew all the way down
from anchorage to tell her story but was unable to do
so today.
Kelly is the impetus and driving force behind this
bill. Her life has been forever changed, and again,
in Alaska, there was no recourse besides a traffic
fine. She has been leading the effort in Alaska to
raise awareness, educated the public, and I am truly
grateful not only that she brought this bill to our
office, but that she had the courage to tell her story
to the committee. These types of tragedies are
completely avoidable with few simple steps of taking
time to inspect your load and secure it properly.
CHAIR CLAMAN advised the committee that the legislation
currently before the committee is CSHB 259, Version 30-LS0917\L,
and subsequent to the sectional analysis, the motion to adopt
Version L would be before the committee.
1:45:04 PM
MR. GRUENING presented the sectional analysis on CSHB 259,
Version 30-0917/L, as follows [original punctuation provided]:
Section 1 on Page 1, line 3 through Page 3, line 4: AS
28.35.251 is repealed and reenacted.
Subsection (a) (1) and (a) (2) on page 1, lines 4
through line 9:
This subsection states that person is guilty of
the crime of failure to contain or confine a load in
the first degree if, with criminal negligence, they
violate (b) and as result, causes serious physical
injury to another person or property damage of $1,000
or more. Criminal negligence applies to the act of the
securing the load.
Subsection (b)(1)(A)(i)(ii) and (B) on Page 1, lines
10 through Page 2, line 6:
This subsection specifies that a person commits
the offense of failure to contain or confine a load in
the second degree if the person drives or moves a
motor vehicle loaded with any material on a highway
unless it is secured or situated in a way that
prevents it from escaping the vehicle or shifting to
the extent that the vehicle's maneuverability or
stability is adversely affected or the load is treated
by methods approved through regulation by the
Department of Public Safety that are designed to
settle the load or remove loose material before it is
driven on a highway.
Subsection (b)(2) on Page 2, lines 7 through 10:
This subsection is an exemption that specifies
that a person may drive or move a motor vehicle loaded
with sand, gravel, dirt, rock, or similar materials
without the securement requirements listed in
(b)(1)(A)(i)(ii) and (B) if at least 6 inches of
freeboard is maintained around the perimeter of the
load or a cover is used and securely fastened.
Subsection (c)(1) on Page 2, lines 11 through 14:
This subsection is an exemption that specifies
that the provisions of this act do not apply to a
vehicle that deposits sand, liquids, or other
materials for the purpose of cleaning, maintaining, or
improving traction on the highway.
Subsection (c)(2) on Page 2, lines 15 through 16:
This subsection is an exemption that specifies
that the provisions of this act do not apply to the
natural
accumulation of snow, ice, mud, dirt, or similar
materials.
Subsection (c)(3) on Page 2, line 17:
This subsection is an exemption that specifies
that the provisions of this act do not apply to a
vehicle that is removing snow or hauling snow after
removal.
Subsection (d) on Page 2, lines 18 through 20:
This subsection specifies that in prosecution
under (a), which is failure to secure a load in the
first degree, a person being previously convicted of a
violation of this section is prima facie evidence that
the person acted with criminal negligence when
securing the load.
Subsection (e)(1) on Page 2, lines 21 through 23:
This subsection specifies that failure to secure
a load in the first degree is a class A misdemeanor.
Subsection (e)(2)(A), (B), and (D) on Page 2, line 24
through Page 3, line 2:
This subsection specifies that failure to secure
a load in the second degree is an infraction
punishable by a fine of not more than $300 on the
first offense, $750 on the second offense, $1,500 on
the third offense, and $2,500 on the fourth offense.
The penalty for the first violation is consistent with
current statute.
Subsection (f) on Page 3, lines 3 through 4:
This subsection specifies that criminal
negligence in this section has the meaning given in AS
11.81.900.
Section 2 on Page 3, lines 5 through 6. AS 28.35.253
is amended by adding a new subsection:
This subsection is a conforming amendment to
reflect the repeal and reenactment of AS 28.35.251 in
Section 1 of the bill and the repeal of AS 28.35.255.
AS 28.35.255 currently houses the penalties for
violations of both AS 28.35.251 and AS 28.35.253.
Violating AS 28.35.253 is currently an infraction and
there is no substantive change.
Section 3 on Page 3, line 7:
Repeals 28.35.255.
1:51:51 PM
REPRESENTATIVE KREISS-TOMKINS moved to adopt CSHB 259, Version
30-LS0917\L, Bruce/Martin, 2/22/18, as the working document.
There being no objection, Version L was before the committee.
1:52:18 PM
REPRESENTATIVE KOPP, in response to Representative LeDoux,
advised that freeboard represents the height of the sideboards
of a vessel or truck before water flows in, or the load falls
out. For example, he said, if there are six inches of freeboard
on a boat, that means the boat is only six inches above the
waterline before sinking; and if there are six inches of
freeboard in the bed of a pickup truck, the load has six inches
before it spills off of the truck.
1:53:09 PM
REPRESENTATIVE LEDOUX referred to [Section 1. AS
28.35.251(b)(2)], page 2, lines 7-9, which read as follows:
(2) at least six inches of freeboard is
maintained around the entire perimeter of a load
consisting of sand, gravel, dirt, rock, or similar
materials or the load is covered and securely fastened
to prevent the cover from becoming loose or detached
or from being a hazard to other users of the highway.
REPRESENTATIVE LEDOUX advised that she understands that the
provision is with regard to sand and dirt, but it would seem
that gravel and rock could be loaded above the six-inch line of
freeboard and that this might be a loophole that subsumes the
entire bill.
MR. GRUENING responded that the six-inch freeboard exemption was
copied from Washington State law in the form of Maria's Law.
This law was a negotiation that was passed in Washington State
between the bill sponsor and the Washington Trucking
Association. This law has been in practice for 10-years and he
has not heard about any specific issues with the trucking
association, the bill sponsor, or the people within which he has
been in communication in Washington State, he advised.
Although, he acknowledged, there could be an instance when
Representative LeDoux's comment could take place, but he is not
aware of any issues with that exemption as to how it has been
applied or any safety hazards in Washington State. He then
deferred to Robin Able who is well aware of the effectiveness of
that law, and she has worked with the Washington State
Department of Transportation (WSDOT).
1:55:18 PM
REPRESENTATIVE LEDOUX commented that "if it is so safe for big
rocks," why would there not be the freeboard exception for
everything.
MR. GRUENING answered that if it was the will of the committee,
that issue could be addressed.
REPRESENTATIVE STUTES explained that the rocks are below the
six-inch freeboard line and opined that a big rock would not be
picked up and blown out when traveling fast down the freeway.
Whereas, she pointed out, with the six-inch freeboard and a load
of particle board, for example, even though there is that six-
inch freeboard, there is still the potential of the wind picking
up a corner of it and blowing it off the truck.
1:56:25 PM
REPRESENTATIVE KOPP responded that it appears the bill is not
preventing a load being loaded in the mounded traditional
manner. It is just that as it comes down and runs into the wall
of the bed of the truck, there had better be at least six-inches
of freeboard so as things roll around, the six-inch wall is
there to catch the items. He related that it would be almost
impossible to load a belly-dump or a dump truck flat and there
would be a mound that sticks above that six-inches. He
explained that that is why the bill read, "is maintained around
the entire perimeter," not that the entire bed is below a six-
inch line as "that's a whole different thing."
MR. GRUENING added that when he spoke with the drafter, he
specific asked that it be crafted in such a manner as to allow
for the mound. Thereby, allowing that when the Alaska
Department of Transportation and Public Facilities (DTPF) and
commercial vehicles load those types of materials, they are
allowed to have the cone in the middle, and that was a "very
specific intent," he emphasized.
1:57:41 PM
REPRESENTATIVE KREISS-TOMKINS referred to the passage of this
law in other states and asked whether any criminal charges had
been brought under this new law, for instance in Washington
State.
MR. GRUENING answered that he could not offer any specific
information, although, enforcement of this law typically happens
when an accident occurs and the police get involved. To the
extent of how often this law is specifically enforced, he said
he could not speak to that question.
1:58:46 PM
REPRESENTATIVE KREISS-TOMKINS related he would like to get a
sense as to the enforcement frequency of this law and the
severity of the accidents. He asked about the sentencing
associated with a class A misdemeanor.
MR. GRUENING responded that there is a fine and imposition of
jailtime. He referred to a class A misdemeanor under AS
12.55.035(a) and paraphrased as follows:
A defendant convicted of a class A misdemeanor may be
sentenced to a definite term of imprisonment of not
more than one year, and it is typically not imposed to
that maximum.
MR. GRUENING then referred to AS 12.55.035(b)(5), which read as
follows:
(5) $10,000 for a class A misdemeanor;
MR. GRUENING offered that that fine is rarely imposed to that
maximum amount.
2:00:27 PM
REPRESENTATIVE STUTES asked whether Mr. Gruening had advised
that a current statute requires that rocks and sand are covered.
MR. GRUENING clarified that the load either needs to be
confined, contained, or covered, so the materials do not escape.
REPRESENTATIVE STUTES pointed out that this does not supersede
that statute or preclude that requirement.
MR. GRUENING advised that it does have the six-inch freeboard
exemption, which goes to Representative LeDoux's comment. He
advised that from his initial conversations with the Washington
State Department of Transportation (WSDT) and Robin Able, the
six-inch freeboard exemption appears to be effective in keeping
items from escaping the vehicle, but he is not an expert on that
issue, he said.
2:01:36 PM
REPRESENTATIVE LEDOUX asked whether she should be looking at
another statute in conjunction with this freeboard issue because
Version L uses the word "or." She referred to page 2, lines 7-
10, which read as follows:
(2) at least six inches of freeboard is
maintained around the entire perimeter of a load
consisting of sand, gravel, dirt, rock, or similar
materials or the load is covered and securely fastened
to prevent the cover from becoming loose or detached
or from being a hazard to other users of the highway.
REPRESENTATIVE LEDOUX then specifically referred to AS
28.35.251(b)(2), page 2, lines 8-10, which read as follows:
(2) ... perimeter of a load consisting
of sand, gravel, dirt, rock, or similar materials or
the load is covered and securely fashioned to prevent
the cover from becoming loose or detached or from
being a hazard to other users of the highway.
REPRESENTATIVE LEDOUX asked whether the language should read,
"and the load is covered and securely fastened" because there is
this large heap of rock and, "we agree" that the freeboard does
not have to come up 2-3 feet. Due to this mound being similar
to a pyramid, should it not read that there is both the
freeboard and something secured around the rock, sand, or
gravel, she asked.
MR. GRUENING related that he follows Representative LeDoux's
logic and could see how "and" could be tied to AS 28.35.251
(b)(1)(A) and (i)(ii), [Section 1, page 1, lines 10-14 and page
2, lines 1-2]. There would either be the freeboard or a tarp,
but that would need to be tied to "it not escaping the vehicle,"
and it would have to be confined and have six-inches of
freeboard or be confined and have the tarp. He opined that if
it is viewed as a loophole, the word "and" could be helpful in
that regard.
2:03:58 PM
CHAIR CLAMAN noted that oftentimes in Anchorage, gravel trucks
and trucks are driving around town transporting uncovered rock
for construction purposes and the bed of a trailer carrying a
mound of rock or sand or gravel is uncovered and, oftentimes,
the trucks carry covered loads with a tarp. Although, he
commented, if the word "and" was used, it would take away the
current practice wherein the truckers do have the option of not
covering those loads when traveling. In the event "or" was
changed to "and" on Page 2, line 8, it would cause that impact.
2:04:50 PM
REPRESENTATIVE LEDOUX offered a scenario of a truck carrying a
huge pile of gravel with "a little bit" of freeboard around it,
and the truck suddenly stops causing all of the gravel or rocks
to "go every which way." She asked whether that scenario is
what this legislation is supposed to prevent.
REPRESENTATIVE KOPP commented that there actually is a limit on
the height of the bed under the commercial vehicle statutes,
which he opined is 12 inches or 18 inches. Even with a load in
the middle of a "big belly-dump," it is almost impossible for a
weight that heavy to shift and come flying out, unless the truck
went from zero to 30 mph in about two seconds. The mound
naturally occurs when a loader empties out a huge shovel into
the truck and the material piles up. He stressed that the load
is not allowed to be 36 inches above the bed, and this freeboard
requirement would definitely be more restrictive. Loads are not
uniform and can be odd shaped, such as when taking apart a
building and so forth. That is why the committee would want to
leave the second occurrence of the word "or" in page 2, line 8,
where the trucker can tie down and secure the load. In that
regard, he pointed out, sometimes the freeboard would not work
at all due to the odds pieces, shapes, and angle irons sticking
out. The truckers would simply need to have the load tied down
and secured. Having the dual requirement, he stressed, would
prevent truckers from being able to perform "a lot of things."
2:07:01 PM
REPRESENTATIVE LEDOUX surmised that Representative Kopp was
referring to commercial trucks. She then asked about the
private person who put rocks in the back of their pickup truck,
and under this legislation the person can stack the rocks as
high as they prefer.
REPRESENTATIVE KOPP commented that the person had better have
the load properly secured.
REPRESENTATIVE LEDOUX said that she thought the securing was the
freeboard.
REPRESENTATIVE KOPP explained that the person cannot stack the
load as high as he wants to if there is a freeboard requirement.
CHAIR CLAMAN added that a small pickup truck would be more
restricted by how much weight could be put in the bed of the
truck because the pickup would break before it would get to the
freeboard requirements.
2:08:36 PM
REPRESENTATIVE KOPP pointed to page 1 of CSHB 259, and advised
that there are two ways in which to be charged with a
misdemeanor under this bill, as follows: violation of AS
28.35.251(b) wherein the person does not have a properly secured
load to prevent it from leaking, spilling, escaping, or it
shifts the vehicle in a manner that adversely affects the
vehicle; and on top of that, violates AS.28.35.251(a)(1)(2) by
causing serious physical injury to another person, or damages
the property of another person in an amount of $1,000 or more.
He pointed out that under current law, a misdemeanor damage
value at an accident scene of $2,000 or more, requires a
mandatory report to law enforcement.
CHAIR CLAMAN asked whether he was suggesting that in the world
of consistency to consider changing the value to $2,000 or more.
REPRESENTATIVE KOPP thanked Chair Claman for his assistance and
commented that it would be consistent in the law, currently
where the misdemeanor penalty kicks in for property damage.
The other issue, when looking at a class A misdemeanor, includes
the following: the fact that even a second DUI is a class A
misdemeanor - a third DUI in seven years is a felony; most
domestic violent assaults; fairly serious assaults; and
endangering vulnerable adults. These examples are class A
misdemeanors and these misdemeanors are very serious, he
stressed. Possibly, he suggested, the committee could consider,
if it is to approve a misdemeanor penalty, changing it to a
class B misdemeanor may be more appropriate, or not, the idea is
just for discussion. Quite a range of behaviors fall under a
class A misdemeanor and a person could receive one-year in
prison and a $10,000 fine, he pointed out.
2:11:33 PM
REPRESENTATIVE EASTMAN referred to AS 28.35.251(e), page 2,
lines 21-22, sentencing for a class A misdemeanor, referencing
AS 12.55, and noted that recently passed legislation may impact
that statute but the supplementals are not yet available. He
asked that Ms. Martin remind the committee what the current
sentencing is for a class A misdemeanor.
2:12:05 PM
HILARY MARTIN, Legislative Legal Counsel, Legislative Legal and
Research Services, Legislative Affairs Agency, responded that
the sentencing for class A misdemeanor, as Mr. Gruening
reported, is under AS 12.55.135, and it was amended under Senate
Bill 91 [passed in the Twenty-Ninth Alaska Legislative Session].
The sentence would actually be 30-days under the statute, and
under Senate Bill 91 it was changed that only certain class A
misdemeanors carry a penalty of one-year, so it would be
imprisonment up to 30-days. Defined under AS 12.55.035, the
sentence is up to $25,000 for a class A misdemeanor, she opined,
which was also amended under Senate Bill 91.
2:13:17 PM
CHAIR CLAMAN opened public testimony on CSHB 259.
2:13:27 PM
ROBIN ABEL advised that she is a mother living in Seattle,
Washington who had never heard about the six-inch rule before
"this happened either." She related that she would tell a story
because this is all about behavior and change, as follows:
My daughter was driving home 14-years ago this
morning. And so, if I'm a little emotional you'll
know why. It was like it was yesterday that the
hospital called me and said, "Your daughter's alive,
please come back to the hospital." I had donated an
organ the night before because I got a call out of the
blue, and it said, "Is your daughter Maria Federichi?"
And, you know, it was the only time I ever wanted to
say no. But I said yes. And when I got to the
hospital, they said they couldn't save her life. I
spent the next few hours filling out paperwork,
donating her organs. But, 14-years ago this morning
they called me and said, "Come back, she's fighting
for her life."
The board that went through my daughter's windshield
weighed 40 pounds, it destroyed her eye sockets, her
nose, her cheekbones, her palate. She had no face and
it almost completely decapitated her. It left her
blind, she has great hearing, she can dance, and all
of the things they said she could never do. She is
blind and she has severe brain damage. Her life will
never be the same because someone made a choice, not
for the few moments or few dollars time, to secure
their load for their vehicle.
I have since changed two laws in Washington State
namely because they told me that what happened to my
daughter was no more than a littering ticket. It was
too late for my child but it's worth it to save other
lives and that is why I do this. Because, I know that
if I can get a moment of compassion with you, and I'm
a little bit partial to the Judiciary Committee
because you guys are the first committee I ever spoke
before. (Audio difficulties.) I changed the law in
Washington State, the one who made sure we got the
general accountability report in Wasington D.C., and
recently Obama signed off in 2012 saying that there
was money available. This was a serious problem and I
encouraged the states to step forward and apply for
(indisc.).
I've since moved on and had (audio difficulties) which
your governor did agree to, and it has been a
wonderful way to educate the public. You guys know as
legislators and especially in the judiciary committee,
changing the law is only one thing, the hard work
starts when you have to stand behind it and stand up
and educate the public. Because we don't all sit down
every year and say, "Well, let's look at what our
legislator did." Okay. And, we can't do that. So, I
ask you today to please look at this law and seriously
consider it. You've got an amazing Alaska citizen
who's gonna testify after me. People approach me all
the time and ask me to help them, but I can count on
two hands the people that actually made it and came
forward. But, I can only raise one finger to a person
who has gotten this far and it is a young woman in
your state who has hurt herself and she asked for
help. I hope today you will acknowledge that she is
an amazing Alaskan citizen. Because I'm partial to
you, I hope you'll be favorable to this bill. I know
it saves lives, the six-inch rule has not been a
problem in our state. It allows when a -- when a
truck (audio difficulties) and doesn't pull out unless
they are already exceeding (audio difficulties) so
it's been very effective. And, it was the way we got
the truckers to agree to support this law that
absolutely did not find it (audio difficulties) in any
way knowing that it was that either that they complied
with the six-inch law or they cover. Now, the six-
inch law does not apply to any other load, okay. It
is only dirt, sand, and gravel, and rock. So, please,
please take a look at this law, give it your
consideration, we're doing it for your families, it's
too late for our family, and please change the law.
Thank you.
2:18:16 PM
KELLY ROY offered testimony as follows:
My name is Kelly Roy, and I am calling from Anchorage,
Alaska. I want to say thank you, first of all, for
listening to me today.
Around three years ago, I was driving on the Glenn
Highway, and there was a driver on the road, a truck
that was carrying an unsecured load. And, the truck's
unsecured load came apart sending debris and trash,
and a large trashcan that came straight at my
windshield. Witnesses said my car rolled four times,
and the Anchorage Fire Department had to cut me out of
my vehicle because I was trapped. I was driven to
hospital with broken bones, bruises, cuts, but what
nearly killed me was a massive blow to my skull. I
had brain bleeding both from the outside and inside of
my brain. Brain bleeding that occurs on the inside of
the brain causes survival rates of about 30 percent.
I survived those odds but not without consequence. I
was diagnosed with a traumatic brain injury, a brain
injury that I live with every day. I had no idea how
much I took for granted until my brain was damaged. I
tried to fight back to get back to the simplest of
things, like holding a fork or brushing my hair, and
walking across the room without falling over. Even
talking to you today, right now, is something that I
had to get back, simply talking.
February 16th was three years since my car crash and
I'm still in therapy. Even today, before I came on
this call to talk to the committee, I have had
(indisc.) nerve feedback and counseling therapy. It
is a weekly routine for me. All of that fight and
loss was because someone could not be bothered to
secure their load.
There is someone else that I would briefly like to
talk about today, an article I found that talks about
another Alaskan affected by an unsecured load.
Sargent Harris was a Fort Richardson military police
who was traveling down on Tudor Road when a projectile
came crashing through the windshield at the equivalent
of 100 mph and hit Sargent Harris in the head. The
projectile was a steel bar about a foot long, four
inches wide, about an inch thick, and weighed about
five pounds. It had apparently been ejected off of a
pickup truck and slid -- and shot into the oncoming
lane and then struck the windshield. Sargent Harris
died of his injuries the following day, he was 24-
years old. The time that that driver did not spend to
secure his load, Sargent Harris paid for with his
life, a fellow Alaskan like myself, and someone who is
my age. In the time that my driver did not spend
properly securing the load, I have paid for with the
rest of my life, I paid for something that is entirely
preventable.
A person chooses not to secure their load just as a
person chooses to get behind the wheel of a car drunk.
Unsecured loads are a huge problem. Anchorage Solid
Waste Services issued 1,392 fines in 2016 for
unsecured loads. 1,392 negligent drivers that were on
Alaska roads that year, and 1,392 chances for someone
to die or be seriously hurt. And that is just
accounting for drivers going to the landfill. I hope
that this bill will educate and remind everyone how
dangerous an unsecured load is, and that it will
protect everybody in this state and hold these
negligent drivers accountable for a choice that has
hurt and killed so many people. I ask that you help
me change this law, change a law that could not
protect me and cannot protect anyone unless there is
change. And, I thank you again for listening to my
story. Thank you.
2:23:09 PM
REPRESENTATIVE KREISS-TOMKINS referred to the 1,392 citations
from the Anchorage Solid Waste Services and asked whether she
has a sense of what constitutes a citation or violation, and how
it relates to the definition of failing to secure a load in the
first or second degree, as written in CSHB 259.
MS. ROY answered that her general sense from her conversations
with the Anchorage Solid Waste Services is that if a load is
unsecured, the driver receives a ticket and a fine. The load
being unsecured when it shows up at the landfill means the load
traveled on the roadways and was unsecured, she remarked.
2:24:12 PM
REPRESENTATIVE LEDOUX thanked her for bringing this issue
forward because it obviously is a problem that needs to be
addressed.
2:24:44 PM
AVES THOMPSON, Executive Director, Alaska Trucking Association,
advised that the trucking industry is heavily regulated by both
the United States Department of Transportation (USDOT) and the
Alaska Department of Transportation and Public Facilities (DTPF)
through their commercial vehicle enforcement. Both sets of
regulations contain specific requirements concerning securement
of loads. He then paraphrased the portion of the federal
regulation covering this issue, which was also adopted into the
Alaska Administrative Code, as follows:
Part 393
Section ? 393.100: Which types of commercial motor
vehicles are subject to the cargo securement standards
of this subpart, and what general requirements apply?
(a) Applicability. The rules in this subpart are
applicable to trucks, truck tractors, semi-trailers,
full trailers, and pull trailers.
(b) Prevention against loss of load. Each
commercial motor vehicle must, when transporting cargo
on public roads be loaded and equipped and the cargo
secured in accordance with this subpart to prevent the
cargo from leaking, spilling, blowing, or falling from
the motor vehicle.
(c) Prevention against the shifting of load.
Cargo must be contained, immobilized, or secured in
accordance with this subpart to prevent shifting upon,
or within the vehicle, to such an extent that the
vehicle's stability or maneuverability is adversely
affected.
MR. THOMPSON noted that together with these broad regulations
are specific regulations about confining and securing each
individual type of load. It is the Alaska Trucking
Association's position that this legislation is unnecessary and
duplicates the requirements already in law for commercial motor
vehicles, he advised.
2:27:03 PM
REPRESENTATIVE LEDOUX related that she understands that the
trucking industry may be regulated by the federal government,
but what sort of criminal penalties apply when violating those
regulations.
MR. THOMPSON deferred to the DOTPF Commercial Vehicle officers
because he is not a lawyer.
2:28:03 PM
EDWARD MARTIN, KEE Construction, advised that KEE Construction
has numerous trucks, and further advised that he is 63 years old
and has been driving truck long before there were CDL rules and
"long before there was a lot of laws." He said that he agrees
with Mr. Thompson in that this legislation is unnecessary new
rules, "under the trucking rules and the commercial codes." In
the early days, when he received his first CLD license, he said
that he experienced a situation where he traveled to Glenn Allen
to pick up a D9 dozer in minus 10-degree freezing weather.
Prior to leaving Glenn Allen, he cleaned the D9's tracks of snow
and ice to the best of his ability. While returning to
Anchorage, the snow on the tracks of the D9 thawed and a rock
fell off of that tractor's tracks onto the deck, and he was
immediately fined for an unsecure load of a rock on the deck,
"of which I didn't have any idea," and he paid the $100 fine.
He offered sympathy for those people who are injured due to
unsecured loads, and he understands the purpose of Maria's Law.
Although, he expressed he does not believe it is necessary to
change the law to "this freeboard thing" because it seems to be
irrelevant. He encouraged the committee to not include a tarp
requirement on commercial trucks that haul gravel due to the
cost of the construction of projects, the lost labor time in
attempting to secure a tarp that may possible flap, "and maybe
in an area where you cannot see your load as you are traveling
on the road." People need to use common sense here, he
suggested. In the event something is written into a new law, he
offered that there should be more defining and the committee
needs to apply it, with an exemption, under the current Federal
Motor Vehicle Safety Standards (FMVSS) because they are already
covered.
CHAIR CLAMAN listed the names of the people online available to
testify.
CHAIR CLAMAN, after ascertaining no one wished to testify,
closed public testimony on CSHB 259.
2:31:29 PM
REPRESENTATIVE LEDOUX asked whether anyone was online to answer
whether any criminal penalties are imposed when a person
violates the federal regulations.
2:32:05 PM
DAN SMITH, Director, Measurement & Commercial Vehicle Standards
Enforcement, Department of Transportation and Public Facilities,
answered that violations of 49 CFR carry a fine of either $150
or $300.
REPRESENTATIVE LEDOUX asked whether "that is it" even if someone
is killed, it is $150 or $300 under federal law.
MR. SMITH deferred to Captain Dan Lowden, Alaska State Troopers,
and advised that the Alaska State Troopers is the lead agency in
a legal case and the commercial vehicle enforcement officers
assist the troopers.
CHAIR CLAMAN asked Captain Dan Lowden to answer Representative
LeDoux's question about criminal sanctions, wherein someone
failed to meet the federal regulations and whether that would
subject the person to a fine (audio difficulties) does not sound
like the federal regulations provide for a criminal penalty. He
asked whether there are crimes in Alaska in which a person could
be charged.
2:33:06 PM
CAPTAIN DAN LOWDEN, Deputy Commander, Central Office, Division
of Alaska State Troopers, Department of Public Safety,
Department of Public Safety (DPS) answered that he is not
familiar with the federal code and its rules. Currently, he
explained, when a trooper is called to a crash where someone is
hurt, injured, or dead, the trooper reviews all of the statutes
available for criminally negligent homicide, manslaughter, and
assault. The facts of the situation would probably dictate how
the person was charged in those areas, he offered.
2:33:47 PM
REPRESENTATIVE EASTMAN asked Ms. Martin whether she is aware of
any statutory limitation prohibiting anyone from seeking relief
in civil court.
MS. MARTIN responded that there is nothing that would prohibit
civil action under this legislation.
2:34:30 PM
REPRESENTATIVE EASTMAN referred to the language "any material,"
and asked whether there are any parameters about the load being
discussed here. He commented that when the committee discussed
the loads generally, the context was "maybe a commercial
vehicle, or gravel, or dirt, or something like that," and he
asked whether there is any type of weight limitation to
something that would not be confined in this statute.
MR. GRUENING replied that there is no weight threshold in this
bill.
2:35:22 PM
REPRESENTATIVE EASTMAN asked whether there is a limitation on
the type of materials that could be caught up in this definition
of "load."
MR. GRUENING answered that he is not an attorney, but in his
layman's definition of "any material," he would say no.
2:35:44 PM
REPRESENTATIVE EASTMAN offered a scenario wherein someone gets
into their car, forgets to secure their trash, and a McDonald's
cheeseburger wrapper flies off. He asked whether that scenario
would be caught up in this definition of "load," or whether
there is anything in the bill that would put that scenario into
a separate category.
MR. GRUENING replied that it would be caught up but offered a
caveat to his response and added that if a McDonald's bag flew
out of a window, hit his windshield causing him to crash, that
scenario would be covered under Section 1, "Failure to secure a
load in the first-degree." He opined that when looking at
whether a material is a danger to motorists, the wrapper could
be a danger. Although, if the wrapper simply flew out of the
vehicle and a police officer witnessed it, he imagined the
person would receive a citation, and the first instance of that
situation would be a $300 fine, and there is a current littering
statute, as well.
2:36:48 PM
REPRESENTATIVE EASTMAN asked how the current littering statute
compares if a person is cited under subsection (b), which
violation would carry the greater penalty.
MR. GRUENING deferred to Ms. Martin and opined that the
littering statute is either $150 or it is $300 as is the
infraction in "the first one." There is no sliding scale in the
bill currently so the second violation under the bill would be
harsher than the current littering statute.
2:37:48 PM
REPRESENTATIVE KOPP opined that the current littering fine is up
to a $500 fine, even on a first offense. Representative Kopp,
in response to Representative Eastman's comments, clarified that
the bill does not read "any materials," and referred to AS
28.35.251(b), page 2, line 8, which as follows:
(2) perimeter of a load consisting of
sand, gravel, dirt, rock, or similar materials ...
REPRESENTATIVE KOPP pointed out that those are the types of
materials the bill is addressing. Also, he explained, currently
there are axle weight limits on every class of commercial
vehicles in the law that must be followed. In the event a
person overloaded a passenger vehicle, that is considered an
"improper load" under 13 AAC or Title 28. For example, in the
event a car is bottomed out on its shocks, a law enforcement
officer can fine the driver for an improperly loaded vehicle.
Alaska law does cover situations where someone might take
advantage of weight either on the commercial side or the
passenger vehicle side, he advised.
2:39:03 PM
REPRESENTATIVE EASTMAN referred to CSHB 259, Version L, [AS
28.35.251(b)] page 1, lines 11-12, which read as follows:
(b) ...second degree if the person drives or moves a motor
vehicle loaded with any material on a highway unless ...
REPRESENTATIVE EASTMAN asked the types of materials being
referenced.
REPRESENTATIVE KOPP responded that that it is further defined on
page 2, lines 7-10, [provision previously typed], and explained
that the content must be taken in context.
2:39:54 PM
CHAIR CLAMAN reminded the committee that the two suggested
potential amendments are as follows: an amendment to change the
property damage amount from $1,000 to $2,000, on page 1, line 8.
He asked the committee whether the bill should be held in
committee in order to take up amendments (audio difficulties)
and the committee could discuss the merits of those two
amendments. He asked whether any member is interested in
bringing up the amendment that would raise the property damage
amount from $1,000 to $2,000 in order to track the vehicular
damage statute Representative Kopp mentioned earlier.
2:40:35 PM
REPRESENTATIVE KREISS-TOMKINS said he would like to better
understand the parallelism it may create in association with
class A misdemeanors.
REPRESENTATIVE KOPP offered that a further reason for that
amendment is that a small ding on the hood of a new truck is
clearly over $1,000. In the event the committee is looking at
misdemeanor territory, "which I'm nervous about, for the
record," the committee definitely wants to raise that property
value. The $2,000 figure represents the mandatory reporting
requirement, otherwise a person is in criminal jeopardy at that
point, he explained.
2:41:38 PM
REPRESENTATIVE KREISS-TOMKINS offered his experience of gravel
being kicked up from other cars, and that he concurs with
Representative Kopp.
CHAIR CLAMAN related that there appears to be an interest in
amending the amount from $1,000 to $2,000 and advised that the
bill would not be moved today.
REPRESENTATIVE STUTES asked whether that amendment language
would be considered a "friendly amendment."
2:42:25 PM
The committee took an at-ease from 2:42 p.m. to 2:43 p.m.
2:43:27 PM
CHAIR CLAMAN noted a broad support within the committee for the
friendly amendment.
2:43:56 PM
REPRESENTATIVE KREISS-TOMKINS offered an interest in related
class A misdemeanors associated with property damage and the
value threshold under current law.
CAPTAIN LOWDEN replied that class A misdemeanors recently
changed and he would have to research the issue, and he opined
that it may be $5,000.
CHAIR CLAMAN noted that the set of statutes broadly relating to
property damage are probably under the criminal mischief
statutes.
REPRESENTATIVE KOPP explained to Captain Lowden that the
committee is looking at property damage for vehicles that
trigger the mandatory report and asked whether the amount was
$2,000, or whether it was recently raised.
CAPTAIN LOWDEN advised that he does not have the figure off the
top of his head and would look it up during this hearing.
2:45:44 PM
REPRESENTATIVE EASTMAN said that when discussing "freeboard"
there was talk about the types of material, except under
subsection (b), generally, there is no description of any types
of material. His concern is whether the language, in some
manner, will prescribe or limit the types of materials being
discussed regarding a load. He opined that most Alaskans would
not think of a cheeseburger wrapper as a load, and possibly the
committee needs to define "load" because "any materials" appears
to be broad. While some may say that that is not a class A
misdemeanor, except due to the most recent change in criminal
negligence, there could be a situation where someone could be in
that cheeseburger wrapper scenario, be convicted of that
scenario, suddenly they have a conviction, and now whatever they
do in the future now (audio difficulties) category due to
littering. He asked whether that is the intent of the
committee.
MR. GRUENING commented that it would be difficult to prove that
someone acted with criminal negligence when a cheeseburger
wrapper flew out of their truck. As to whether the word "load"
could use further defining as to "any material," he said he
would leave that up to the will of the committee through
discussions with the chair and drafters.
2:48:12 PM
REPRESENTATIVE KOPP noted that after researching the mandatory
reporting requirement, advised that the amount of $2,000
triggers the mandatory reporting requirement.
CHAIR CLAMAN asked whether this issue requires a friendly
amendment.
2:48:48 PM
The committee took an at-ease from 2:48 p.m. to 2:51 p.m.
2:51:05 PM
CHAIR CLAMAN advised that while off-record, the committee
discussed taking up Conceptual Amendment 1 to CSHB 259 to
increase the property damage amount on page 1, line 8, from
$1,000 to $2,000.
2:51:33 PM
REPRESENTATIVE KOPP moved to adopt Conceptual Amendment 1 to
CSHB 259, [to increase the property damage amount on page 1,
line 8, from $1,000 to $2,000].
REPRESENTATIVE EASTMAN objected for purposes of discussion.
2:51:47 PM
REPRESENTATIVE EASTMAN referred to the discussion of a possible
amendment to change it from a class A misdemeanor to something
lower than that classification. He opined that it might be
important especially when discussing damage of only $2,000,
which is fairly easy to reach when dealing with vehicles and
highways, and now the person is at risk of a $25,000 fine as a
class A misdemeanor for a fender bender. He remarked that he is
not comfortable with that because he believes that threshold
would have to be higher than $2,000 and/or remove that class A
misdemeanor label.
CHAIR CLAMAN noted that the question of the class A misdemeanor
is a separate question. The only issue before the committee
currently is whether to increase the property damage amount for
the purposes of this bill from $1,000 to $2,000.
REPRESENTATIVE STUTES called for the question.
REPRESENTATIVE EASTMAN removed his objection. There being no
objection, Conceptual Amendment 1 to CSHB 259, was adopted.
2:53:04 PM
CHAIR CLAMAN advised that the committee would now move to the
more complicated question about class A misdemeanors versus
class B misdemeanors in terms of what the offenses represent.
He advised that he was involved with the sponsor's office in
working on the bill and the two things to bear in mind are as
follows: at least two people involved in the trucking industry
are unhappy, although they are currently covered with
regulations that dictate the requirements that truckers secure
their loads; and there were 1,392 failures to secure loads
citations at the Anchorage Solid Waste Services which suggests
this may be more directed at consumers who do not know what they
are doing, rather than the truckers. Public testimony clearly
pointed out that the risk of not securing a load and its
potential damage is enormous, he remarked.
2:54:17 PM
REPRESENTATIVE KOPP offered that a key issue here is that in
order to reach the class A misdemeanor, the person would have
had to have committed this violation with criminal negligence.
He referred to [AS 28.35.251(a), page 1] line 6, "criminal
negligence" and explained that criminal negligence is the mental
state that must apply under AS 11.81.900(4), which read as
follows:
(4) a person acts with "criminal negligence" with
respect to a result or to a circumstance described by
a provision of law defining an offense when the person
fails to perceive a substantial and unjustifiable risk
that the result will occur or that the circumstance
exists; the risk must be of such a nature and degree
that the failure to perceive it constitutes a gross
deviation from the standard of care that a reasonable
person would observe in the situation.
REPRESENTATIVE KOPP clarified that "normal negligence" would not
bump a person into misdemeanor territory, it must be criminal
negligence which is a "gross deviation from the standard of care
that a reasonable person would [observe] in the situation." He
explained that there must be criminal negligence which caused
serious physical injury, which anyplace else in the law would be
felony assault. He continued, "Or not causing serious physical
injury, the person had to act with criminal negligence or cause
property damage in amount ... " He explained that when there is
no criminal negligence and the person caused $10,000 in property
damage, the ensuing investigation would "say, you know that's a
really bummer that happened, but I can see an honest effort was
made to secure the load." He offered appreciation that the
mental state standard must be met, and if the committee wanted
to be even safer it could ratchet it up to "recklessly," which
is a higher standard that is normally associated with class A
misdemeanors. Possibly the committee could consider whether
criminal negligence would be a good one for a class B
misdemeanor, although, because there is a mental state, it helps
justify attaching criminal behavior if that mental state is met,
he said. Otherwise, he explained, all of "these things" could
happen and for a person who is honestly trying to do the right
thing, they would not "get hit with a misdemeanor ever," because
criminal negligence would have had to be attached.
2:56:46 PM
REPRESENTATIVE EASTMAN argued that on page 2, line 20, the bill
redefines criminal negligence for purposes of this law, which
says that any violation of this section ...
CHAIR CLAMAN interjected that the bill does not redefine
criminal negligence, it is specifically defined under AS
11.81.900(4) which is the existing definition.
REPRESENTATIVE EASTMAN said "Well, we can use some different
words to talk about what we're doing on page 2, line 20, then."
He offered that the bill specifically calls out criminal
negligence and specifically calls out any violation of this
section as constituting a prima facia violation under criminal
negligence. His concern, he noted, is that the bill will have
something which normally would not be considered criminal
negligence, i.e., trash or litter, and now any conviction of
trash or litter bumps the person up, under subsection (a), to a
class A misdemeanor because "you don't have to have the normal
criminal negligence definition criteria." Now, he explained,
the person just has to have some previous conviction which,
under this section, could have been a simple $300 fine.
2:58:15 PM
REPRESENTATIVE LEDOUX asked whether criminal negligence ever
comes into play when no injuries or property damage is involved.
She referred to Representative Eastman's trash scenario and
asked whether the trash could ever injure a person.
CHAIR CLAMAN clarified that if a cheeseburger wrapper hit a
person while walking, it would likely not cause serious physical
injury which makes it hard to conceptualize how it "gets to this
level." He noted that Representative Eastman's descriptions are
inaccurate as to the intent of this bill because a littering
violation would not be a prior conviction in this regard, the
only prior convictions under this particular statute would
require a violation of failure to secure a load, and a littering
violation would not count as prior events.
2:59:33 PM
REPRESENTATIVE LEDOUX asked whether there are any other criminal
negligence crimes that are considered prima facia evidence of
criminal negligence if the person had committed it previously,
or whether this would be the only one.
MS. MARTIN answered that there are some other crimes where
certain facts are prima facia evidence, but she did not know
offhand whether a prior conviction is prima facia evidence
similar to this legislation.
3:00:46 PM
REPRESENTATIVE LEDOUX referred to AS 28.35.251(e)(2), page 2,
lines 24-31, which read as follows:
(2) second degree is an infraction
punishable by a fine of more than
(A) $2,500 if the person had been
previously convicted three or more times of a
violation of this section;
(B) $1,500 if the person has been
previously convicted twice of a violation of this
section;
(C) $750 if the person has been
previously convicted one time of a violation of this
section; or
REPRESENTATIVE LEDOUX noted that this is for an infraction and
asked whether this section is when personal injury is not
involved.
CHAIR CLAMAN answered in the affirmative.
3:01:08 PM
REPRESENTATIVE LEDOUX surmised that it is only a class A
misdemeanor when someone is hurt or there is serious property
damage.
CHAIR CLAMAN answered in the affirmative.
REPRESENTATIVE KOPP agreed with Representative LeDoux as to the
way the bill is currently written and noted that there is a real
misunderstanding to what prima facia is here. Prima facia
simply means "at first glance, at the first encounter," he
explained, but it has to support subsequent cooperative
investigation. He further explained that when first looking at
the issue, it appears there is criminal negligence due to a
prior conviction, but "you have to actually look to see if that
mental state still ... it is assumed that it does." Except a
person can argue to the court that the wrapper flew out the bed
of their truck even though they had everything bagged up, and
criminal negligence should not apply even though, at first
glance, criminal negligence applies due to a prior violation, he
advised. The person still has a legal defense, it is just now
more on the person to show that that alone should not push the
person into the criminal negligence state. He asked that a
lawyer comment on his understanding.
3:02:43 PM
REPRESENTATIVE LEDOUX surmised that it changes the burden of
proof. Under a normal criminal trial, the person is charged,
and they do not have to testify and they do not have to present
a defense. Although, she pointed out, this language read that a
person does not have to actually prove anything for criminal
negligence other than "somebody has done something before."
CHAIR CLAMAN referred to Evidence Rule 303(b) and noted that the
rule specifically shifts the burden. Therefore, if the prima
facia case has been established, that would then shift the
burden to the defendant to disprove the criminal negligence,
which is consistent with Representative Kopp's comments.
MS. MARTIN noted that Evidence Rule 303 discusses preemptions,
and Evidence Rule 303(b) discusses prima facia evidence, which
read as follows:
Rule 303. Presumptions in General in Criminal Cases.
(b) Prima Facie Evidence. A statute providing
that a fact or group of facts is prima facie evidence
of another fact establishes a presumption within the
meaning of this rule.
3:04:10 PM
REPRESENTATIVE LEDOUX referred to AS 28.35.251(e), page 2, lines
21-31, which read as follows:
(e) Failure to confine a load in the
(1) first degree is a class A misdemeanor
punishable as provided in AS 12.55;
(2) second degree is an infraction
punishable by a fine of more than
(A) $2,500 if the person had been
previously convicted three or more times of a
violation of this section;
(B) $1,500 if the person has been
previously convicted twice of a violation of this
section;
(C) $750 if the person has been
previously convicted one time of a violation of this
section; or
REPRESENTATIVE LEDOUX surmised that it is first degree, which is
a class A misdemeanor but only if someone is injured. She asked
where that language is located in the bill.
CHAIR CLAMAN, in response, turned to subsection (a), page 1,
lines 6-9, which read as follows:
(a) ... criminal negligence violates (b) of this
section and, as a result of that violation,
(1) causes serious physical injury to
another person; or
(2) damages property of another person in an
amount of $1,000 or more.
3:04:49 PM
REPRESENTATIVE LEDOUX asked where that refers to AS 12.55.
CHAIR CLAMAN said that it does not. Alaska Statute 12.55 is
simply providing a penalty provision on page 2, lines 22-23,
which read as follows:
(e) Failure to confine a load in the
(1) first degree is a class A misdemeanor
punishable as provided in AS 12.55;
CHAIR CLAMAN advised that the above-mentioned provision read
that if a person violated the first degree ... He then turned
to AS 28.35.251(a) page 1, lines 4-9, which read as follows:
(a) A person commits the crime of failure to
contain or confine a load in the first degree if the
person, with criminal negligence, violates (b) of this
section and, as a result of that violation,
(1) causes serious physical injury to
another person; or
(2) damages property of another person in an
amount of $1,000 or more.
CHAIR CLAMAN turned to AS 28.35.251(a), page 1, lines 5-9 and
paraphrased as follows: "A person who commits the crime of
failure to confine -- contain or confine a load in the first
degree if the person, with criminal negligence, violates (b) ...
and then causes the injury or the property damage." That
language gives the classification of the first-degree offense,
he explained.
3:05:30 PM
REPRESENTATIVE LEDOUX asked whether there must be criminal
negligence as to second-degree also.
CHAIR CLAMAN answered, "No," that is a strict liability offense.
3:05:46 PM
REPRESENTATIVE LEDOUX asked where that language is located.
CHAIR CLAMAN answered that the language is found under AS
28.35.251(b) page 1, lines 10-12, which read as follows:
(b) A person commits the offense of failure to
contain or confine a load in the second degree if the
person drives or moves a motor vehicle located with
any material on a highway unless
3:06:38 PM
REPRESENTATIVE KREISS-TOMKINS commented that given the mens rea
that Representative Kopp noted, adjusting criminal negligence to
recklessness is more consistent with other class A misdemeanors.
He asked the sponsor whether a class B misdemeanor would be
amendable given the committee's current discussion and noted
that the property damage and the $2,000 of vehicular property
damage pieces catch him. He commented that there is probably
$10,000 worth of property damage on his Jeep currently because
he has never taken it into a shop to deal with it, which is five
class A misdemeanors. He said he is uncomfortable with the
language making it a class A misdemeanor, and the causing
serious physical injury to another person piece feels more
appropriate. He suggested potentially separating out those two
issues.
3:08:12 PM
REPRESENTATIVE MILLETT remarked that she agrees with
Representative Eastman because in correlating classifications
for a class A misdemeanor and class B misdemeanor with criminal
negligence and recklessness, the committee needs some time to
show equity in class A misdemeanors and class B misdemeanors.
While she understands the intent, she said she believes "we're
going overboard" with class A misdemeanors when it comes to
"what you're trying to do," because it has progression in it,
and she thought a comparative would be helpful.
CHAIR CLAMAN explained that a comparative may be helpful, except
this legislation has both together in a first-degree offense.
It may be that with a class A misdemeanor, even with criminal
negligence for serious physical injury, this committee would be
comfortable with a class A misdemeanor when serious physical
injury is involved but feels differently about property damage.
Therefore, possibly the direction to move into is to make it a
class B misdemeanor as to property damage, and a class A
misdemeanor when serious physical injury is involved, he
suggested.
3:09:51 PM
REPRESENTATIVE EASTMAN restated that the class A misdemeanor is
probably more than is necessary in this type of situation. He
then noted testimony wherein someone advised that they had a
secured load involving snow and ice, and when the snow and ice
melted and a rock fell, it became an unsecured load. He
suggested that the committee go back to the definition of a load
to make certain it is defined consistent with the committee's
discussions. It is not his belief, he offered, that any number
of prosecutions under these types of situations would train the
average member of the public dealing with snow, ice, pebbles,
and so forth, on their cars. He opined that the public would
not get the message based on stiffer penalties even in the class
B misdemeanor category. He related that he is uncomfortable
with criminalizing things that the committee would not
necessarily think of as criminal activity when, usually, there
is no criminal intent. He said he wants to shift the
conversation outside of the criminal side and make sure that
those kinds of situations and that type of behavior is treated
more normally under civil sanctions. In the event someone
caused damage, they could be taken to court in order to recover
those damages under the normal process. He questioned whether a
criminal conviction would help someone "be made well" because a
rock hit their windshield. No matter the amount of training or
how narrowly these types of provisions are tailored, "that stuff
is still going to happen" and in some cases, maybe it is
criminally negligent, but in a lot of cases it probably is not
criminally negligent.
3:13:11 PM
REPRESENTATIVE KOPP clarified for Representative Eastman that
the criminal offense would never apply unless the person had
already demonstrated criminal negligence. The person must meet
the criminal negligence standard, otherwise the person will not
ever face a criminal [charge], he explained. In the event the
person acted with criminal negligence and caused serious
physical injury as a result of failing to secure their load,
that person should be in criminal territory. Criminal
negligence, he reiterated, is a gross standard of deviation from
the care a reasonable person would exercise in that same
circumstance, and if the issue is property damage the criminal
negligence applies. In the event the person was not acting with
criminal negligence, it does not matter if a person wipes out
another person's entire $45,000 pickup, if the accident
investigation showed that it was an accident. By the way, he
advised, if the person was criminally negligent there are many
other statutes under which the person could be charged, such as
vehicular assault, vehicular homicide with reckless
endangerment, and so forth. He offered appreciation to
Representative Eastman for his statement about not over-
criminalizing things, and he appreciates the differentiation in
Representative Eastman's mind, depending on the issue. But,
again, having the mental state here "we're protected" on getting
too far astray on that issue, he remarked.
CHAIR CLAMAN referred to the question of civil liability versus
criminal liability and noted that one of the ways "we reflect
our" society's values is when it is believed that certain
conduct is so egregious it should be criminalized. That action
not only reflects our values but it also reflects an expectation
on the part of the public that is very different than civil
liability. And, he noted that when he listened to Kelly Roy's
testimony about what she experienced when someone did not secure
their load, and the testimony from Robin Abel as to what
happened to her daughter when someone did not secure their load,
he does not believe this issue belongs solely in civil law
territory. Criminal sanctions are appropriate, particularly,
when serious physical injury occurs because someone failed to
secure their load, and that person should be looking at
potential criminal sanctions. He pointed out that the 1,392
unsecured loads at the Anchorage Solid Waste Services shows that
something needs to change and it will not change solely with
civil liability. The question about serious physical injury
versus property damage is appropriate for the committee to try
to determine the parameters, but he does not believe civil
liability is enough to express society's views in terms of the
importance of securing loads, he stressed.
[HB 259 was held over.]