Legislature(2005 - 2006)CAPITOL 120
03/18/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB131 | |
| HJR7 | |
| HB148 || HB101 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HJR 7 | TELECONFERENCED | |
| += | HB 131 | TELECONFERENCED | |
| += | HB 187 | TELECONFERENCED | |
| += | HB 188 | TELECONFERENCED | |
| += | HB 148 | TELECONFERENCED | |
| += | HB 101 | TELECONFERENCED | |
HB 131 - ACCESS DEVICE & I.D. DOCUMENT CRIMES 1:12:20 PM CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 131, "An Act increasing the criminal classification of theft of an access device and of obtaining an access device or identification documents by fraudulent means; increasing the criminal classification for certain cases of fraudulent use of an access device; and providing for an effective date." 1:12:29 PM JOHN B. SKIDMORE, Assistant District Attorney, Third Judicial District (Anchorage), Department of Law (DOL), relayed that he was available to answer questions regarding HB 131. REPRESENTATIVE COGHILL said his concern is that the threshold of $50 is very low over which to become a felon, and suggested that maybe the focus should be on the criminal intention of taking someone's identity rather than on the specific value of merchandise stolen; therefore, even if the a person only stole $10 worth of merchandise, the felony penalty would be applied because of the seriousness of identity theft. He offered his belief that circumstances involving a family member taking checks or credit cards would be a civil crime or a crime of passion, and said he questions whether having a $50 threshold would be so arbitrary as to runs afoul of the law [in some manner]. MR. SKIDMORE said he has no problem with a threshold lower than $50. On the question of why it would be okay to have a threshold as low as $50, he pointed out that the crime of forgery in the second degree - AS 11.44.505 - has no threshold, so even if a check is forged for only $5, it still results in a felony charge; he noted that other states have varying thresholds, and sometimes no threshold, for making the theft of an access device a felony. MR. SKIDMORE said he has no concerns regarding familial situations involving credit cards, because if both family members have their names on the credit card, then both family members are entitled to use it - and the same applies in situations involving checking accounts - and if only one family member's name is on the credit card and another family member uses it, then it becomes a civil matter and the prosecutor is unlikely to accept such a case because it will be hard to meet the burden of proof beyond a reasonable doubt that one family member intended to defraud another family member. The bill stipulates that the intent is to defraud, and the prosecutor has the discretion to screen out cases in which family members are using one another's credit cards. He added that although he cannot guarantee that the prosecution would never pursue such a case, it is unlikely absent extenuating circumstances wherein it can be proven that clearly, one family member didn't have permission to use the other family member's credit card. He then remarked that property offenses are never considered crimes of passion. REPRESENTATIVE COGHILL indicated that Mr. Skidmore's comments were helpful. 1:20:02 PM REPRESENTATIVE COGHILL asked what the difference in intent would be, for the purpose of a lawsuit, if the proposed threshold of $50 is kept in the bill. Must the value of the merchandise stolen be $50 or more before a prosecution can occur? MR. SKIDMORE said the current threshold is arbitrary and doesn't affect intent at all; via the language currently in HB 131, the legislature is deciding whether the use of an access device is a misdemeanor or a felony, so even if the value of the merchandise stolen is under the currently proposed threshold of $50, a crime has still been committed. He opined that the bill will be helpful in situations wherein someone takes another's identity by stealing identification cards and access devices, and that such conduct constitutes a significant problem that must be addressed because of the potential to adversely affect a victim's credit history and, hence, his/her life. REPRESENTATIVE GARA indicated that perhaps the $50 threshold for using a stolen credit card is acceptable to him, but he has a concern about Sections 1 and 4 because they appear to say that just stealing someone's access device or obtaining it by fraudulent means, regardless of whether it is ever used, will result in a felony charge. Using a hypothetical example of a pickpocket who steals someone's wallet and keeps the money but throws away the credit card, he asked whether that person could be charged with a felony, or whether the prosecution would have the discretion to charge the pickpocket with a lesser crime. MR. SKIDMORE offered his belief that that person could be charged with a felony because the theft of the credit card potentially exposes the victim to significant financial damage; however, the hypothetical pickpocket might not be charged with a felony if he/she threw away the credit card, since the prosecution might not be able to show an intent to [use the credit card]. He noted that he hasn't yet seen anyone such as the hypothetical pickpocket convicted of a felony for his/her first offense, adding that that is function of prosecutorial discretion. REPRESENTATIVE GRUENBERG mentioned that he might have had a case "like that." REPRESENTATIVE GARA said it seems that Section 1 would make it a felony even if the person threw away the credit card, because he/she still stole the credit card, and that Section 4 appears to make it a felony because stealing a credit card, whether intentional or not, could be looked upon as obtaining an access device by fraudulent means. He said he is agreeable to having it be a felony when someone steals a credit card and uses it, but would not want just the taking of a credit card to be a felony. 1:29:40 PM REPRESENTATIVE GRUENBERG noted that AS 11.46.100, which is referenced in Section 1, says in part: Sec. 11.46.100. Theft defined. A person commits theft if (1) with intent to deprive another of property or to appropriate property of another to oneself or a third person, the person obtains the property of another; REPRESENTATIVE GRUENBERG offered his belief that by referencing AS 11.46.100, Section 1 would make just stealing a credit card a felony. MR. SKIDMORE concurred, but added that with regard to the question of whether taking a credit card but not using it should be a felony, he suggested that the committee should consider situations in which someone is arrested and is found to have several credit cards in his/her possession. If mere possession of someone else's credit card doesn't constitute a felony, then prosecutors will have to wait until the person is actually caught using a stolen credit card before they can prosecute him/her with a felony; he noted, however, that just because one could be charged with a felony, the prosecution might not feel that a particular person should be charged with a felony. If, on the other hand, a person with past convictions is caught with a stolen credit card in his/her possession, it wouldn't be appropriate to only be able to charge that person with a misdemeanor, he opined, and characterized HB 131 as a tool that the prosecution can use when dealing with people who truly are trying to commit identity theft. REPRESENTATIVE GRUENBERG noted that AS 11.46.990(8) says in part: (8) "deprive" or "deprive another of property" means to (A) withhold property of another or cause property of another to be withheld from that person permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to that person; (B) dispose of the property in such a manner or under such circumstances as to make it unlikely that the owner will recover the property; REPRESENTATIVE GRUENBERG offered his belief that this definition, coupled with Section 1 of the bill, would make stealing someone's credit card and throwing it away a felony. CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on HB 131. REPRESENTATIVE GRUENBERG opined that HB 131 is a good bill because a credit card is basically "a license to charge up to the limit." 1:34:41 PM REPRESENTATIVE COGHILL moved to report HB 131 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HB 131 was reported from the House Judiciary Standing Committee.
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