Legislature(2017 - 2018)GRUENBERG 120
03/05/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB259 | |
| HB319 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 319 | TELECONFERENCED | |
| += | HB 259 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 259-CONFINING VEHICLE LOADS
1:02:19 PM
CHAIR CLAMAN announced that the first 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
committee substitute (CS) for HB 259, Version L.]
CHAIR CLAMAN advised that Legislative Legal and Research
Services has permission to make any technical and conforming
changes to the bill.
1:03:31 PM
REPRESENTATIVE STUTES moved to adopt Amendment 1, labeled 30-
LS0917\L.4, Bruce/Martin, 3/1/18, which read as follows:
Page 1, line 6:
Delete "(b)"
Insert "(c)"
Page 1, line 7:
Delete "(1)"
Page 1, lines 7 - 9:
Delete "; or
(2) damages property of another person in
an amount of $1,000 or more"
Page 1, following line 9:
Insert a new subsection to read:
"(b) A person commits the crime of failure to
contain or confine a load in the second degree if the
person violates (c) of this section and damages the
property of another person in an amount of $5,000 or
more."
Reletter the following subsections accordingly.
Page 1, line 11:
Delete "second"
Insert "third"
Page 2, following line 23:
Insert a new paragraph to read:
"(2) second degree is a class B misdemeanor
punishable as provided in AS 12.55;"
Renumber the following paragraph accordingly.
Page 2, line 24:
Delete "second"
Insert "third"
REPRESENTATIVE KREISS-TOMKINS objected for discussion purposes.
1:04:08 PM
MATT GRUENING, Staff, Representative Louise Stutes, Alaska State
Legislature, advised that during the previous hearing there was
a general concern that the threshold for property damage was too
low with regard to the elevation of an offense to a class A
misdemeanor. There was also an interest in separating the
offense where property damage occurred from serious physical
injury to another person. Amendment 1 is in response to those
concerns as it raises the misdemeanor threshold of property
damage to $5,000, and Amendment 1 lowers that offense where only
property damage of over $5,000 occurred from a class A
misdemeanor to a class B misdemeanor. In the event this
amendment is adopted, a violation would have three degrees of
offenses, rather than two, as follows: first degree, which is
still a class A misdemeanor when with criminal negligence the
person failed to secure a load resulting in the serious injury
of another person; the newly added second degree would be a
class B misdemeanor when with criminal negligence a person
failed to secure a load resulting in over $5,000 in damage to
another person's property; and, third degree is the fines and
the increase with each offense is untouched.
1:06:24 PM
REPRESENTATIVE EASTMAN asked whether the change of $2,000 to
$5,000 "is a strict change of amount" because it appears there
is more language in the amendment.
MR. GRUENING referred to Amendment 1, page 2, lines 2-5 and
responded that the amendment changes it to a class B misdemeanor
rather than a class A misdemeanor. He pointed out that there is
conforming language where "or" was deleted because another
section was added. He explained that page 1, lines 21-23 and
page 2, lines 9-11, deletes the language "second" and "third"
because a second-degree offense was added. Therefore, what was
a second-degree offense in the bill had to become a third-degree
offense. He explained that the only substantive changes in the
amendment are raising the threshold for property damage, and the
class B misdemeanor.
CHAIR CLAMAN clarified that if Amendment 1 is adopted, there
will be three tiers of an offense within this statute, as
follows: the first would be a class A misdemeanor which results
in serious physical injury to another person; second degree
would be an unsecured load that results in a property damage of
over $5,000; and the third level would be a strict liability
violation that simply involves an unsecured load with the fines
as set forth.
1:08:07 PM
REPRESENTATIVE EASTMAN referred to Amendment 1, page 1, line 15-
17, which read as follows:
(b) A person commits the crime of failure to
contain or confine a load in the second degree if the
person violates (c) of this section and damages the
property of another person in an amount of $5,000 or
more.
REPRESENTATIVE EASTMAN asked whether "(c) of this section"
refers to subsection (c) in Amendment 1, or subsection (c)
refers to "some other part that's not covered in the amendment?"
MR. GRUENING deferred to Hillary Martin, Legislative Legal and
Research Services
1:09:13 PM
HILARY MARTIN, Legislative Legal Counsel, Legislative Legal and
Research Services, Legislative Affairs Agency, asked that the
question be repeated.
REPRESENTATIVE EASTMAN referred to Amendment 1, page 1, lines
15-17, and asked whether subsection (c) on line 16 is the same
as subsection (c) on page 2, line 11, or is it referring to a
different subsection (c).
MR. GRUENING responded that the sections on page 1, line 6 were
[relettered] from subsection (b) to subsection (c). Therefore,
the current subsection (c) would be the previous subsection (b).
CHAIR CLAMAN clarified that that is what appears on Amendment 1,
page 1, lines 19, which read as follows:
Reletter the following subsections accordingly.
CHAIR CLAMAN explained that what is now CSHB 259, page 1, line
10 subsection (b), will become subsection (c) under Amendment 1.
1:10:27 PM
REPRESENTATIVE EASTMAN surmised that that is "what is being
referred to on lines 9-10, and now we keep line 7 of the
original bill and we're getting rid of line 8."
MR. GRUENING answered that Representative Eastman was correct in
that it is a product of [relettering] subsection (b) to
subsection (c).
1:11:08 PM
CHAIR CLAMAN referred to Amendment 1, page 1, line 16, and noted
that there was an omission that did not include the language
"with criminal negligence" in what would become the class B
misdemeanor for failure to secure a load that results in over
$5,000 in property damage.
MS. MARTIN advised that if the committee wants the new class B
misdemeanor offense for damaging the property of another person
to have the mental state of criminal negligence attached, the
committee should add that language.
CHAIR CLAMAN noted that that is a question for the committee and
asked Representative Kopp whether he would like to move a
conceptual amendment to add that language.
1:12:21 PM
REPRESENTATIVE KOPP reminded the committee that it had a
consensus to attach a criminal charge of misdemeanor, whether it
is a class A or class B misdemeanor, it should have a mental
state. Thereby, recognizing that it is not so much just the
property damage but also that a person was criminally negligent,
and that should rise to a misdemeanor level charge. It would
keep the state's criminal law consistent with intent being part
of a criminal offense, he explained.
REPRESENTATIVE KOPP moved to adopt Conceptual Amendment 1 to
Amendment 1, page 1, lines 15-17, and the language would read as
follows:
A person commits the crime of failure to contain or
confine a load in the [second] degree if the person
with criminal negligence violates (c) of this section
and damages the property of another person in the
amount of $5,000 or more.
CHAIR CLAMAN clarified that the language would be second degree
and not third degree on line 16. He added that Conceptual
Amendment 1 to Amendment 1, page 1, line 16, adds the language
"with criminal negligence" after the words "the person" and
before the words "violates (c)."
1:13:52 PM
REPRESENTATIVE EASTMAN asked that if Conceptual Amendment 1 left
out the "with criminal negligence" language, what would be the
harm.
REPRESENTATIVE KOPP explained that the harm is that the
committee is attaching a criminal offense based on dollar damage
only, and the legislature tries to fastidiously avoid not having
a criminal intent requirement for criminal offenses. For
example, he offered, a woman goes to Lowe's to pick up a new
appliance, the employees strap it down on the truck bed, and
tell her they will meet her at the house to install the
appliance. Except, he said, the appliance was not properly
secured and it flew out of the truck causing over $5,000 in
damage to the car behind her. In this instance, and all things
considered, there probably would not be a finding of a criminal
negligence state of mind on the part of the woman simply because
the property damage dollar amount was met. He opined that
having a mental state attached to a crime is important because
in that case, he opined, it was a bad accident but not any
criminal negligence on the part of the woman.
1:15:43 PM
CHAIR CLAMAN advised that there being no objection, Conceptual
Amendment 1 to Amendment 1 was adopted.
1:15:55 PM
REPRESENTATIVE EASTMAN noted that he had revisited the
conversation of subsection (b) to subsection (c) and he
understands that what is taking place now in Amendment 1, page
1, lines 2-3. Except, he noted, there is nothing in the
amendment that defines what subsection (c) is, and he asked
whether subsection (c) is found on CSHB 259, page 2, line 11.
CHAIR CLAMAN clarified that with the language on Amendment 1,
page 1, lines 19 [previously typed], page 1, line 10 will become
subsection (c) with regard to the [relettering]. He advised the
following: CSHB 259, page 2, line 11, will become subsection
(d); line 18, subsection (d) will become subsection (e); line
21, subsection (e) will become subsection (f); and page 3, line
3, subsection (f) will become subsection (g).
1:17:22 PM
REPRESENTATIVE KREISS-TOMKINS withdrew his objection. There
being no further objection, Amendment 1, as amended, was
adopted.
1:17:41 PM
REPRESENTATIVE STUTES moved to adopt Amendment 2, labeled 30-
LS0917\L.5, Bruce, 3/1/18, which read as follows:
Page 2, line 16:
Delete "or"
Page 2, line 17, following "removal":
Insert "; or
(4) random litter; in this paragraph,
"litter" includes plastic wrappers, empty plastic
bags, leaves, paper, or similar soft materials"
REPRESENTATIVE REINBOLD objected.
1:18:11 PM
MR. GRUENING explained that during the previous hearing there
was a discussion regarding whether this bill would apply to
something such as a cheeseburger wrapper or a garbage bag that
escaped a vehicle. He advised that it is not the sponsor's
intent that the bill apply to random cheeseburger wrappers or
empty plastic garbage bags, but only to a load of such items.
He said that "load" is a commonly understood term and defining
what a load is would limit the court's ability to determine
whether something is a load because the definition itself may be
overly or underly prescriptive. The sponsor submitted Amendment
2 to further clarify the intent of this legislation. The
amendment specifies that the bill does not apply to random
litter, and the current definition of litter, under AS 46.06.150
includes waste materials which the drafter confirmed can include
a large heavy object. The definition of waste materials is
something that is for disposal and is no longer of use, which
could include a large empty propane tank or an entire bed of
scrap metal, for example. The sponsor chose, in Amendment 2, to
further define what litter is in relation to the bill, and that
definition is "plastic wrappers, empty plastic bags, leaves,
paper, or similar soft materials." The language "similar soft
materials" was included to give the court the leeway to look at
similar objects and include those. The definition "includes but
is not limited to" allows the inclusion of similar other items.
Litter is then modified by the word "random" which means "made,
done, happening, or chosen without method or conscious
decision." The modifier of "method or conscious decision"
covers what Representative Eastman referred to during the last
hearing, it clarifies exactly what types of litter is being
discussed and what would be included as to a load. It is the
sponsor's belief, he explained, that Amendment 2 clarifies the
exclusion of these types of materials if they are loaded without
method or conscious decision.
1:20:48 PM
CHAIR CLAMAN referred to Amendment 2, page 1, line 6, and noted
that it references "random litter" and the word in quotes is,
"litter" and not random litter. He asked why the language is
not random litter the second time it appears on line 6.
MR. GRUENING replied that the drafter advised that since litter
is actually being defined, she did not think the second use of
random was necessary.
1:21:26 PM
MS. MARTIN responded that the amendment defines "litter" and
"random" is modifying litter, and without defining "random" that
would carry the normal dictionary definition of the word.
1:22:01 PM
REPRESENTATIVE REINBOLD removed her objection to the motion to
adopt Amendment 2. There being no further objection, Amendment
2 was adopted.
1:22:13 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 3, labeled 30-
LS0917\L.6, Martin, 3/2/18, which read as follows:
Page 2, line 19:
Delete "of a violation of this section"
Insert "under (a) of this section within the
preceding 10 years"
REPRESENTATIVE STUTES objected for purposes of discussion.
1:22:20 PM
REPRESENTATIVE EASTMAN referred to the earlier discussion
regarding criminal negligence and the desire to appropriately
capture the types of violations that will be covered under this
statute and making sure there is a look back that can capture
some of those previous violations, even some of the smaller
violations. Except, in not wanting to take something that was
an accident or a one-time occurrence and turn that into
something that would become a class B misdemeanor, Amendment 3
offers ten years look back, he explained.
1:23:28 PM
REPRESENTATIVE STUTES said that she does support Representative
Eastman's Amendment 3. Currently, she noted, the look back for
a DUI is 15 years and it appears reasonable to have a 10-year
look back limit as to whether a prior offense of an unsecured
load can be used in determining whether a person acted with
criminal negligence when failing to secure a load.
CHAIR CLAMAN asked whether it was Representative Eastman's
intention that the prior violations refer to the convictions of
the class A misdemeanor for injury, or whether it is his
intention that the violations reference the strict liability
violation for failure to secure a load that might or might not
result in property damage or personal injury.
REPRESENTATIVE EASTMAN answered that he is looking at CSHB 259,
[AS 28.35.251(a)] page 1, lines 4-6, 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
REPRESENTATIVE EASTMAN explained that his amendment is
specifically focused on subsection (a) and not trying to get
into a $300 ticket is the intent. In the event there has been
any violation of subsection (a) within the previous 10 years
then that becomes something for greater scrutiny.
1:25:32 PM
The committee took an at-ease from 1:25 p.m. to 1:26 p.m.
1:26:24 PM
REPRESENTATIVE LEDOUX noted that she thought that once
Representative Kopp's Conceptual Amendment 1 to Amendment 1 was
adopted, that there must be criminal negligence for both the
property damage and personal injury damage. Therefore, she
surmised, there is no longer strict liability under this bill.
CHAIR CLAMAN explained that for the property damage over $5,000,
and for the serious physical injury, a mental state of criminal
negligence is required. He continued that for simply having an
unsecured load when no personal injury or property damage
occurs, that is a violation in the third degree and that is a
strict liability offense.
1:27:29 PM
REPRESENTATIVE LEDOUX surmised that the example of the Lowe's
employees securing the woman's load that falls off and causes
$4,500 in damage is not criminally negligence, and she receives
an infraction even though it was not her fault.
CHAIR CLAMAN opined that he believes Representative LeDoux is
correct. He asked her to consider the 1,300 people in Anchorage
who have driven to the dump and were cited for not securing
their loads, but there is then the situation where a dresser
falls out of the truck and hits someone. The intent is to give
the police additional tools.
1:28:57 PM
REPRESENTATIVE LEDOUX agreed, and she referred to the woman
wherein Lowe's employees secured her load, or a friend secured
the load, and pointed out that fighting the ticket should at
least be an option if a person did not do anything wrong.
REPRESENTATIVE KOPP responded that the citing of a pure
violation where there is no criminal negligence could be just a
violation, even if there was $10,000 damage, if there is no
criminal negligence. The offense would be the lowest level of a
cite for whatever the fine is on the bail schedule. He referred
to [CSHB 259, AS 28.35.251(d), page 2] lines 18-20, which read
as follows:
(d) In a prosecution under (a) of this section,
the fact that the person has been previously convicted
of a violation of this section is prima facia evidence
that the person acted with criminal negligence.
REPRESENTATIVE KOPP opined that where the confusion enters is
because [CSHB 259, subsection (d), page 2] "we have lines 18,
19, and 20 in the bill at all now" because that was actually
fixed by attaching the criminal negligent mental state to both a
serious physical injury that has occurred, and the person has to
have acted with criminal negligence, and that has been attached
to the dollar value at $5,000. It almost makes these lines
problematic in the manner in which the legislation read in that
it is prima facia evidence that the person had a previous
charge. In the event the discussion is about "inclusive of
prior criminal charges" the committee is complicating the law
where the intent is entirely met with what was done by attaching
the criminal negligence to the mental state for both the serious
physical injury and the property damage, and the third is to
write a ticket. It is his understanding that Representative
Eastman does not want a simple ticket to amount to criminal
negligence for a subsequent offense 10 years later. He asked
Representative Eastman whether he was correct.
REPRESENTATIVE EASTMAN responded that within the adopted
Conceptual Amendment 1 [to Amendment 1], the concerns were
resolved behind his Amendment 3, but there is this discrepancy.
In building on Representative Kopp's statement, he said that his
conceptual amendment would be to simply remove lines 18-20 on
page 2 of the bill, and that would clear away all of the
concerns.
1:32:00 PM
CHAIR CLAMAN commented that that is a very different question
and instructed Representative Eastman to hold up on that
conceptual amendment. He recalled that the purpose in the
committee's earlier discussions of having the violations was
recognizing that when a person has had repeat offenses of not
securing a load within the last 10 years, and then a load falls
off and someone is injured, to be able to use those prior
violations as evidence of criminal negligence because the person
had repeatedly driven with an unsecured load. The notion was to
make that a strict liability offense that could then be evidence
of negligence the next time a person hurt someone or caused
property damage, and there were concerns about when that could
be used. He said he does not believe there was an interest in
saying that someone with prior tickets for driving with an
unsecured load cannot be used to show criminal negligence when
someone is injured.
1:33:40 PM
REPRESENTATIVE STUTES responded that Chair Claman was exactly
correct in what he implied.
1:33:58 PM
REPRESENTATIVE LEDOUX referred to "other vehicular things," and
asked whether there are other infractions where it is strict
liability.
REPRESENTATIVE KOPP answered that speeding is strict liability
because if someone is driving over the limit, they are over the
limit and the person is subject to being cited. The courts have
done that because it is almost impossible to conceive of how
many reasons or excuses there could be for driving over the
speed limit.
CHAIR CLAMAN noted that running a red light and running a stop
sign are all strict liability violations.
1:35:13 PM
REPRESENTATIVE LEDOUX commented that if a person had a seizure
and drove through a red light or a stop sign, she did not
believe the person would receive a ticket or a conviction.
REPRESENTATIVE KOPP replied that a justification defense is
built into the law for any offense where something that is wrong
could otherwise be justified based on a circumstance, and that
circumstance being a medical incident. The concern there would
not be a citation but that medical care is promptly delivered,
he said.
1:36:20 PM
REPRESENTATIVE KREISS-TOMKINS referred to Representative
LeDoux's scenario and commented that last year in Petersburg, on
July 3rd, two young women were killed in a vehicle when the
driver had a seizure while driving. That driver should not have
been driving because there are laws that if a person has
seizures, they are supposed to surrender their driver's license.
That driver is being prosecuted for manslaughter or vehicular
homicide, he said.
CHAIR CLAMAN commented that, in the civil context, in the event
a person ran a red light causing an accident and a citation was
issued, that citation becomes prima facia evidence of negligence
and people would sometimes contest it. Oftentimes, he said that
when he represented the injured party, it worked to their favor
because those citations were almost all strict liability.
Littering is a strict liability offense and the littering
statute, that is not directly tied to this legislation, is a
strict liability offense, he advised.
1:38:00 PM
REPRESENTATIVE EASTMAN offered an example wherein someone was
driving down a hill, and someone else had cut their brakes and
they were unintentionally driving above the speed limit,
certainly the legislature would not want to prosecute that
individual. That, he said, goes to the concept behind Amendment
3 itself. The woman had the refrigerator secured at Lowe's and
somewhere along her drive home something happened that was not
her fault and she received a citation for something that did not
result in any type of injury or significant damage. Later on,
something else happened and Lowe's was criminally negligent by
failing to secure the load and it had a history of using faulty
equipment. Suddenly this woman was in that situation. He asked
whether the woman could now be caught up and wrapped into
deciding she was criminally negligent today due to something
that was not her fault nine years ago. He related that that is
the concern he is trying to get at when the person was not to
blame for the incident that happened over 9 years later and
there is another incident where the person is still not to
blame, but due to lines 18-20, the law declares the woman was
criminally negligent. He pointed out that it is removing the
defense that the woman was not criminally negligent, but because
she received that citation nine years ago, she is criminally
negligent.
CHAIR CLAMAN noted that he believes the intent of the committee
was to make it so that prior violations can be used to become
prima facia evidence. He offered that [CSHB 259, AS
28.35.251(d), page 2, lines 18-20] subsection (d) would need to
be modified in the following two different ways: it would need
to be a prosecution under subsections (a) or (b) of this section
on line 18, and in Amendment 1, page 1, line 3, "Insert 'under
(a) of this section within the preceding 10 years'" would need
to be subsection (c). While, he said, that is not what
Representative Eastman is trying to do but to the extent the
committee is trying to create a means to use prior violations as
prima facia evidence in a criminal prosecution, the only way to
do that is to have the amendment reference subsection (c). The
second question is whether the committee wants the prosecution
to apply both to a first-degree and second-degree offense, he
asked.
1:41:19 PM
REPRESENTATIVE STUTES referred to the scenario of the woman
whose refrigerator was tied up in an unsecure fashion, and she
said that the woman has some ownership if she is driving the
vehicle. Anyone can tie down the load, but the driver is the
responsible individual and should double check the load. She
said she has a hard time buying the, "Well, I didn't do it"
defense.
1:41:51 PM
REPRESENTATIVE LEDOUX said that she agrees with Representative
Stutes. She offered a scenario of the person "totally relying
on somebody else" and something went wrong, and because the
person had that one incident, it should have been the wakeup
call to make sure the load was correctly secured. Also, she
pointed out, this is just prima facia evidence, and unless a
person contests it, they accept it and will be tagged for the
offense.
1:43:21 PM
REPRESENTATIVE KOPP noted that Chair Claman's memory of what the
committee had decided was accurate. He clarified that "as is
written now, under (c) as you have conceptually modified this,
under (c) of this section within the preceding 10 years" this is
now just discussing a violation, not misdemeanors. It is
putting a time barred look back of 10 years so if something
happened beyond 10 years, it is not introducing any presumption
at all.
1:44:06 PM
CHAIR CLAMAN asked Representative Eastman whether he wanted to
continue with his amendment or offer modifications in the form
of a conceptual amendment.
1:44:27 PM
REPRESENTATIVE EASTMAN answered that Legislative Legal and
Research Services has been given the ability to make the
modification "under (a) on line 3 of Amendment 3, to under (c)
now, and that's because we passed Amendments 1 and 2, of
course." That does continue with the intent of this amendment
and with the intent of the committee, he offered.
1:45:05 PM
REPRESENTATIVE EASTMAN moved to adopt Conceptual Amendment 1 to
Amendment 3, to amend Amendment 3, page 1, line 3, "(a) and make
it (c)." There being no objection, Amendment 1 to Amendment 3
was adopted.
1:45:29 PM
CHAIR CLAMAN offered that the second conceptual amendment he had
had raised was whether anyone was interested in making "this
subsection the prosecution applies to both (a) and what is now
subsection (b), which would mean either the property damage or
the serious physical injury section to apply for the prima facia
evidence."
REPRESENTATIVE EASTMAN responded that he probably would not
support that conceptual amendment because his intent is to
solely to deal with subsection (c). He opined that under
subsections (a) and (b), those are separate offenses and to
treat them separately.
1:46:09 PM
REPRESENTATIVE LEDOUX advised that she would like to make sure
that if someone has been found liable for either the strict
liability or the two criminal negligence provisions, that it
remains prima facia evidence.
CHAIR CLAMAN suggested that Representative LeDoux make a
conceptual amendment that would read [under CSHB 259, AS
28.35.251(d), page 2, line 18], as follows: "(d) In a
prosecution under (a) or (b) of this section ..."
REPRESENTATIVE LEDOUX related that she thought (a) or (b) of
this section was the criminal negligence section.
CHAIR CLAMAN agreed that those are the criminal negligence
sections, and the prima facia evidence relates to criminal
negligence because if it is strict liability, the prima facia
evidence of criminal negligence is not needed to prove a
violation.
1:47:40 PM
CHAIR CLAMAN, in further response to Representative LeDoux,
explained that there is an evidence rule that allows prior
convictions of a similar crime to be introduced. For example,
he said, if a person had a prior conviction for failure to
secure a load and they were convicted either for the serious
physical injury or the property damage, that prior conviction
would be admissible in a subsequent prosecution.
REPRESENTATIVE LEDOUX agreed, and she asked, what if the person
was convicted of strict liability. She referred to the person
who goes to the dump and is cited for an unsecured load, and if
five years later they've actually hurt someone, she wants this
to be prima facia evidence of their criminal negligence. She
commented that, due to all of the conceptual amendments, the
committee is almost at the point where she needs to see [the
amendments made into a committee substitute].
1:49:27 PM
REPRESENTATIVE EASTMAN advised that both in the bill language as
written, and also in his amendment thus far, he was simply
keeping the language on line 18, which specifically speaks to
the prosecution under (a), which is any case where someone was
hurt, there is this automatic look back. He said he is hesitant
to extend that to a broader scope.
1:50:22 PM
CHAIR CLAMAN pointed out that the difficulty with his analysis
is that when this referenced (a) on line 18, subsection (a) at
the time of line 18, included both a first-degree offense for
causing serious physical injury and a first-degree offense for
causing property damage. The differentiation the committee now
has with the adoption of Amendment 1 between first-degree and
second-degree did not exist, so when there is reference on line
18, "to a prosecution under (a) of this section" today as
amended, that would actually need to be "a prosecution under (a)
or (b) of this section" because at the time (a) was in the bill,
the committee did not have two different offenses for first-
degree and second-degree, both of which required criminal
negligence. There was "(a) which was two different ways to have
a class A misdemeanor, and you had (b) which was a strict
violation offense," he said.
1:51:25 PM
REPRESENTATIVE EASTMAN related that there was another
conversation about separating those, prior to this and prior to
Amendment 1 being introduced, and that he was building on
Amendment 1 in how he chose to write Amendment 3.
1:51:50 PM
The committee took an at-ease from 1:51 p.m. to 1:55 p.m.
1:55:35 PM
REPRESENTATIVE STUTES moved to adopt Conceptual Amendment 2 to
Amendment 3.
1:54:14 PM
The committee took an at-ease from 1:54 p.m. to 1:55 p.m.
1:55:32 PM
REPRESENTATIVE STUTES moved to adopt Conceptual Amendment 2 to
Amendment 3, as follows: [CSHB 259, AS 28.35.251(d)] "page 2,
line 18, after the letter A, where it says: is guilty of a class
A, I would like to insert 'or B.'" There being no objection,
Conceptual Amendment 2 to Amendment 3 was adopted.
1:56:16 PM
REPRESENTATIVE KOPP offered concern regarding the 10 years look
back and said he was trying to think if there is any consistency
in the criminal law, wherein for a DUI or for certain theft
cases there is a seven year look back. He asked whether this is
an outlier or whether it should be kept at seven years for
purposes of continuity in the laws as far as a look back.
REPRESENTATIVE EASTMAN said he did not have an objection.
CHAIR CLAMAN asked Ms. Martin for insight in terms of the look
back period, where the 10 years comes from, and other examples
of look back in the law.
1:57:12 PM
MS. MARTIN responded that there are a number of statutes with
look back periods and opined that it is more a policy decision
as to how far back the committee wants to go.
CHAIR CLAMAN surmised that 10 years is not inconsistent with
other statutes, some of which may read 7 years, and that the DUI
statutes may read 15 years.
MS. MARTIN answered that Chair Claman was correct. She
explained that there are some statutes where a previous
conviction counts no matter how far back it went, there are 5,
10, and 15 years, with a broad range to look back.
1:58:15 PM
REPRESENTATIVE STUTES removed her objection to the motion to
adopt Amendment 3, [as amended]. There being no further
objection, Amendment 3, as amended, was adopted.
1:58:38 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 4, labeled 30-
LS0917\L.7, Martin, 3/2/18, which read as follows:
Page 3, lines 3 - 4:
Delete all material and insert:
"(f) In this section,
(1) "criminal negligence" has the meaning
given in AS 11.81.900;
(2) "highway" means any paved area that is
open to the public for vehicular traffic and regularly
maintained by the state or a municipality."
REPRESENTATIVE STUTES objected.
1:58:42 PM
REPRESENTATIVE EASTMAN said that building on the previous
hearings and conversations with other committee members, he
would like to see a more clear and limited definition of
"highway." He acknowledged that it refers to criminal
negligence here, and Amendment 4 does not affect criminal
negligence in any manner. The drafter had explained that how
the committee is renumbering and reshaping it, the criminal
negligence portion needed to be in here because it is still
referenced in the amendment and the bill itself. The operative
part of Amendment 4 is on Page 1, lines 5-6, which read as
follows:
(2) "highway" means any paved area that is
open to the public for vehicular traffic and regularly
maintained by the state or a municipality.
REPRESENTATIVE EASTMAN explained that there are many other
definitions of "highway" in the statutes that include everything
from goat trails to "everything else." He opined that the
intent in the discussions has been on what is traditionally
understood as roads, streets, and highways, and this definition
would capture all of those things.
2:00:07 PM
REPRESENTATIVE STUTES advised that she was opposed to Amendment
4 and deferred to Mr. Gruening.
2:00:32 PM
MR. GRUENING explained that the bill currently uses the existing
and well-understood definition of "highway" under AS
28.28.990(14), which includes: nonpaved roads, and defines the
highway as the entire width between the boundary lines that are
publicly maintained when part of it is open to the public for
vehicular travel. He clarified that it includes all streets and
roads, regardless of whether they are paved, as well as the
median, shoulder, and the ditch. The State of Alaska has an
amazing number of unpaved roads that are part of the highway
systems that are certainly for common vehicular use for the
public. In contract, he said, the definition in Amendment 4
only addressed paved road that are publicly maintained and only
the portion of any highway that is actually paved, rather than
including the median, shoulder, and ditch. The sponsor's
primary concern is that there are many unpaved roads and it
appears unwise to define the boundaries of a highway in a more
restrictive manner than in current statute.
REPRESENTATIVE STUTES maintained her objection.
2:02:04 PM
REPRESENTATIVE KOPP commented that there are many city streets
that are gravel roads that the Municipality of Anchorage
maintains which are in his district.
2:02:29 PM
REPRESENTATIVE EASTMAN withdrew Amendment 4.
2:02:43 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 5, labeled 30-
LS0917\L.9, Martin, 3/2/18, which read as follows:
Page 3, lines 3 - 4:
Delete all material and insert:
"(f) In this section,
(1) "criminal negligence" has the meaning given in AS
11.81.900;
(2) "load" means material intentionally transported
by the person to be offloaded at a destination, but
does not include extraneous material such as litter,
snow, mud, or ice."
REPRESENTATIVE STUTES objected.
2:02:52 PM
REPRESENTATIVE EASTMAN explained that Amendment 5 defines
"load," and this is a law that is being expanded beyond
professional truck drivers to affect anyone operating a vehicle.
He said he wanted to make clear what it is that is being
discussed with the word "load" because if there is not a
definition, the public will look at "load" and think that it
means "some big thing or some formal thing, or some professional
thing, and certainly my little thing here isn't a load," and
this definition clarifies exactly what is meant by "load."
2:03:45 PM
REPRESENTATIVE STUTES responded that she objects to Amendment 5
and deferred to Mr. Gruening.
2:03:57 PM
MR. GRUENING referred back to his previous testimony with one
addition and said that a load is mentioned in several statutes,
the littering statute and also in the confined load statute
currently, but it is not defined anywhere in current statute.
Through conversations with the drafter it became clear to the
sponsor that it is a commonly understood term and trying to
define "load" is problematic because it restricts the ability of
the courts wherein it is defined on a case-by-case basis.
Speaking directly to Amendment 4, he related that the three main
issues are as follows: there can be many instances within which
a person loaded into their vehicle with something the person did
not intend to offload, such as a dog kennel, but it still
presents a hazard if not properly secured; secondly, with regard
to the intent to transport, but there could be instances wherein
something was loaded on for storage without the intention of
transporting the item, but forgot it was there when driving off
- for the person seriously injured or whose property was damaged
over $5,000, whether it was intended for offloading or transport
is not of high importance; and thirdly, regarding exclusion of
extraneous material such as litter, snow, mud, or ice, the first
issue is that the definition of litter under AS 46.06.150(5)
includes waste materials, and waste could be something to be
eliminated or discarded, such as a whole truck bed full of
jagged pieces of scrap metal. The natural accumulation of snow,
mud, or ice, is already exempted from the bill on page 2, lines
15-16, he pointed out.
2:07:20 PM
REPRESENTATIVE KOPP asked whether a similar situation to the dog
kennel might be when a commercial toolbox or a fuel drum is in
the bed of a truck.
MR. GRUENING agreed, and he responded that a person could have a
toolbox in the bed of their truck that was not intended to be
offloaded.
2:08:12 PM
REPRESENTATIVE STUTES maintained her objection.
2:08:16 PM
REPRESENTATIVE EASTMAN opined that the point about restricting
the courts is important because without a definition of "load,"
any number of things could be violations under this law that is
being created. The point is absolutely to limit the courts to
something the public can clearly understand, and law enforcement
can understand when enforcing this law. In the event "load"
does not mean something that is intentionally being transported
to then be offloaded, he commented that "load" is not quite the
right word. He described that when you put something on your
truck and you want to take it off, that's a load, he opined that
the committee is trying to do something different and so he
believes this definition is important to put into statute.
2:09:40 PM
A roll call vote was taken. Representative Eastman voted in
favor of Amendment 5. Representatives Reinbold, Kopp, Kreiss-
Tomkins, LeDoux, Stutes, and Claman voted against it.
Therefore, Amendment 5 failed to be adopted by a vote of 6-1.
2:10:12 PM
CHAIR CLAMAN brought the bill, as amended, back before the
committee.
2:10:30 PM
REPRESENTATIVE KREISS-TOMKINS commented that from the testimony,
this is a legitimate issue and he appreciates the legislation
because he did not know what to make of it when it first came
into the committee. He opined that this legislation is better
as it leaves the committee on a number of levels and he is
excited to see it on its way through the legislative process.
2:11:07 PM
REPRESENTATIVE EASTMAN commented that currently there are a
large number of statutes and the committee is now creating
another law, which is of concern to him because while he did
hear a number of national statistics, the only Alaska statistic
provided was the reference to the people with unsecured loads
traveling to the [Anchorage] dump. In the event that is the
concern, the committee should focus this new law on that type of
violation as people could be hurt by unsecured dump loads.
Although, he noted that this is a more expansive law and it has
the potential to "catch up" people who are not necessarily doing
anything wrong, or intending to do anything wrong, and now the
state has to enforce this new law. The committee has not
defined "load, other than stuff," which is concerning, he said.
2:12:41 PM
REPRESENTATIVE KOPP pointed out that reckless endangerment has
always been on the books, a class A misdemeanor offense for
creating any type of an unjustifiable risk to another human
being, plus there are other ways to criminally charge. This
legislation more narrowly focuses specific behavior on unsecured
loads and it actually gives better guidance to public safety in
many ways rather than having a general "catch all" statute. He
opined that the fact the committee gave the legislation a
criminal intent keeps the standard fairly high wherein a person
can't just be a little bit negligent, the person has to be
criminally negligent to be caught up in the criminal offense
category. He said that he appreciates the amendments the
committee members offered, and the amendment accepted from
Representative Eastman, and he appreciates everyone working on
this legislation together.
2:13:59 PM
CHAIR CLAMAN said he is reminded by this legislation that one of
the most dangerous acts people take every day is getting into a
car and driving somewhere. Society is actually comfortable with
all sorts of regulations about cars, such as, who drives a car,
where the cars are driven, and the manner in which the cars are
driven. He referred to the testimony of the Anchorage woman who
suffered at the hands of the driver with an unsecured load and
noted that that is the sort of conversations people tell their
legislators, which then leads the legislature to determine
reasonable regulations and reasonable ways to manage the
statistically dangerous activity of driving a car. He said he
is pleased to support the legislation.
2:14:47 PM
REPRESENTATIVE STUTES advised Representative Eastman that her
office has plenty of statewide statistics on crashes if he is
interested. She thanked Chair Claman and Representative Kopp
for their expertise in helping to craft this legislation.
because public safety is paramount and this seems like such a
simple fix. She reminded the committee that it received first-
hand testimony from the Anchorage woman who was affected
personally, which is devastating and changes the course of
people's lives.
2:15:52 PM
REPRESENTATIVE KREISS-TOMKINS moved to report CSHB 259, Version
30-LS0917\L, Bruce/Martin, 2/22/18, as amended, out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, CSHB 259(JUD) was reported
from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB319 ver D 2.26.18.pdf |
HJUD 2/26/2018 1:00:00 PM HJUD 3/5/2018 1:00:00 PM |
HB 319 |
| HB319 Supporting Document-Public Comment 3.5.18.pdf |
HJUD 3/5/2018 1:00:00 PM |
HB 319 |
| HB319 Opposing Document-Public Comment (Amend) 3.5.18.pdf |
HJUD 3/5/2018 1:00:00 PM |
HB 319 |
| HB319 Amendment #1 3.5.18.pdf |
HJUD 3/5/2018 1:00:00 PM |
HB 319 |
| HB319 Amendment #1 HJUD Final Vote 3.5.18.pdf |
HJUD 3/5/2018 1:00:00 PM |
HB 319 |
| HB259 Work Draft Committee Substitute ver L 2.23.18.pdf |
HJUD 2/23/2018 1:30:00 PM HJUD 3/5/2018 1:00:00 PM |
HB 259 |
| HB259 Opposing Document-Alaska Trucking Association Letter 3.5.18.pdf |
HJUD 3/5/2018 1:00:00 PM |
HB 259 |
| HB259 Amendments #1-5 3.5.18.pdf |
HJUD 3/5/2018 1:00:00 PM |
HB 259 |
| HB259 Amendments #1-5 HJUD Final Votes 3.5.18.pdf |
HJUD 3/5/2018 1:00:00 PM |
HB 259 |