Legislature(2001 - 2002)

02/21/2001 01:07 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 102 - THEFT OF PROPELLED VEHICLES                                                                                          
                                                                                                                                
Number 0082                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  announced the  first order  of business  would be                                                               
HOUSE BILL  NO. 102, "An Act  relating to the theft  of propelled                                                               
vehicles."                                                                                                                      
                                                                                                                                
Number 0099                                                                                                                     
                                                                                                                                
HEATHER  M. NOBREGA,  Staff  to  Representative Norman  Rokeberg,                                                               
House  Judiciary Standing  Committee,  Alaska State  Legislature,                                                               
came  forward  to explain  the  difference  between the  proposed                                                               
committee substitute  (CS) [Version J]  and the original  HB 102.                                                               
On page 2,  line 22, the proposed CS deletes  the words "personal                                                               
water craft" and  then goes on to say that  "watercraft" does not                                                               
include "a shallow draft propelled  vehicle not more than 12 feet                                                               
in length with an inboard motor  powering a water jet pump as its                                                               
primary means  of propulsion that  is designed to carry  not more                                                               
than two persons who sit, stand, or kneel on the vehicle."                                                                      
                                                                                                                                
Number 0181                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG noted  for the  record that  by "a  shallow draft                                                               
propelled  vehicle  not more  than  12  feet  in length  with  an                                                               
inboard motor powering  a water jet pump as its  primary means of                                                               
propulsion that  is designed to  carry not more than  two persons                                                               
who sit,  stand, or kneel on  the vehicle" the committee  meant a                                                               
jet ski or its derivations.                                                                                                     
                                                                                                                                
Number 0211                                                                                                                     
                                                                                                                                
MS. NOBREGA explained:                                                                                                          
                                                                                                                                
     We're   ...  trying   to   limit   the  definition   of                                                                    
     "watercraft"  for purposes  of this  statute only.   We                                                                    
     don't care about the definition  of "watercraft" in any                                                                    
     other parts  of Title  11, only  for this  statute, and                                                                    
     it's only  so that [stealing] a  jet ski is not  on the                                                                    
     same  level  [as]  stealing  a  boat.    If  you  steal                                                                    
     someone's boat, it's an automatic  felony; if you steal                                                                    
     someone's jet  ski, it's a misdemeanor  unless you meet                                                                    
     the three provisions under section .360(a)(2).                                                                             
                                                                                                                                
MS. NOBREGA  said the  reason the definition  is not  included in                                                               
the back under the general  provisions is that the term "personal                                                               
water craft"  is used just once.   The rules of  construction are                                                               
that when a term is used just  once, it is defined just once, and                                                               
the definition appears in the section in which the term is used.                                                                
                                                                                                                                
Number 0350                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG added  that if  the term  "personal water  craft"                                                               
were  to be  defined at  the  back of  the chapter,  it would  be                                                               
necessary  to change  the definition  of "watercraft"  throughout                                                               
all the  chapters, and  he thought  doing so  would make  the law                                                               
more confusing to the general  public.  He further clarified that                                                               
the intent of HB  102 is to lower the penalty for  the theft of a                                                               
snow machine, all-terrain vehicle (ATV), or jet ski.                                                                            
                                                                                                                                
Number 0475                                                                                                                     
                                                                                                                                
ROGER WORTMAN,  Staff to Representative  Pete Kott,  Alaska State                                                               
Legislature,  came  forward  on behalf  of  Representative  Kott,                                                               
sponsor of  HB 102.  He  concurred with the proposed  CS and with                                                               
Chair Rokeberg's  analysis.  Mr.  Wortman said HB 102  "creates a                                                               
level playing field  for those people who have to  rely on a snow                                                               
machine  or an  ATV as  a primary  means of  transportation.   It                                                               
amends  the definition  of ATV  and  it puts  the personal  water                                                               
craft in a place away from other recognized watercraft."                                                                        
                                                                                                                                
Number 0540                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN expressed confusion  about the motivation for                                                               
putting personal water  craft in a different  category from other                                                               
boats.  He noted that  personal watercraft are expensive machines                                                               
and may be worth more than an old skiff.                                                                                        
                                                                                                                                
Number 0582                                                                                                                     
                                                                                                                                
MR. WORTMAN  said he could not  provide an answer.   He explained                                                               
that Jerry  Luckhaupt, Legislative  Counsel, had helped  with the                                                               
drafting.                                                                                                                       
                                                                                                                                
CHAIR ROKEBERG asked him, "What's the level playing field?'                                                                     
                                                                                                                                
MR. WORTMAN said "personal water  craft" was a term Mr. Luckhaupt                                                               
suggested using in place of "jet ski."                                                                                          
                                                                                                                                
REPRESENTATIVE OGAN  wanted to know  if it  would be a  felony to                                                               
steal a personal water craft.                                                                                                   
                                                                                                                                
CHAIR ROKEBERG explained  that a jet ski/personal  water craft is                                                               
put on the same  level with a snow machine and an  ATV.  Under HB
102, it  is not  a felony to  steal any of  those, but  a second-                                                               
degree theft, a class A misdemeanor.   This removes a burden from                                                               
law enforcement  by separating short-term  "joyriding" of  one of                                                               
these  "toys" from  the more  serious  vehicle theft,  a class  C                                                               
felony.                                                                                                                         
                                                                                                                                
Number 0837                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL asked for  the rationale behind specifying                                                               
seven days.                                                                                                                     
                                                                                                                                
MR. WORTMAN explained that the  seven-day time limit quantifies a                                                               
difference between  joyriding and theft.   A person who  has kept                                                               
stolen property seven days is  presumed to intend never to return                                                               
it.                                                                                                                             
                                                                                                                                
REPRESENTATIVE  COGHILL  wondered  why it  specifies  seven  days                                                               
instead of three.                                                                                                               
                                                                                                                                
MR. WORTMAN said it was based on  the fee for rental so the court                                                               
system could  have some  way to  place a value  on taking  a snow                                                               
machine.                                                                                                                        
                                                                                                                                
Number 0900                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  clarified  that  only  a  propelled  vehicle  is                                                               
subject to the seven-day test.                                                                                                  
                                                                                                                                
REPRESENTATIVE  COGHILL remembered  when a  bicycle he  owned was                                                               
stolen and  said, "They weren't  even going to start  looking for                                                               
it for a week."  He was  afraid that police would not even bother                                                               
looking for a  missing snow machine, he said.   He thought HB 102                                                               
was sending the wrong message about  theft.  "It concerns me that                                                               
we're  saying we  are elevating  it, but  we're going  to give  a                                                               
grace period of a week," he added.                                                                                              
                                                                                                                                
Number 0990                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG acknowledged  that the  seven-day time  limit was                                                               
somewhat  arbitrary,  but up  to  a  week's  use of  property  is                                                               
comparable to  its leasehold value; after  that, the unauthorized                                                               
use turns  into a  crime.   "I think  the key  issue here  is the                                                               
distinction  between what's  a felony  and what's  a misdemeanor,                                                               
and they're trying  to make it level in terms  of the category of                                                               
vehicle," he said.                                                                                                              
                                                                                                                                
REPRESENTATIVE COGHILL referred  to page 1, line  12, where there                                                               
is reference to  cases in which there is damage  of $500 or more.                                                               
He surmised that  meant police would act  immediately rather than                                                               
waiting  a week  if a  vehicle was  destroyed on  the day  it was                                                               
stolen.                                                                                                                         
                                                                                                                                
CHAIR ROKEBERG said that was correct.                                                                                           
                                                                                                                                
Number 1063                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGAN observed  that if  somebody took  a "junker"                                                               
snow machine  worth less than  $500 and  kept it more  than seven                                                               
days, that becomes a felony.                                                                                                    
                                                                                                                                
MR. WORTMAN said that would be  true if that snow machine was the                                                               
sole transportation of the person from  whom it was taken and the                                                               
thief did not intend to return it to the owner.                                                                                 
                                                                                                                                
REPRESENTATIVE OGAN  said he  didn't see  any reference  to "sole                                                               
transportation."                                                                                                                
                                                                                                                                
MR. WORTMAN said there was no reference to it in HB 102.                                                                        
                                                                                                                                
REPRESENTATIVE OGAN expressed concern  about a teenager taking an                                                               
old, broken-down snow machine, and that being a felony.                                                                         
                                                                                                                                
Number 1178                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  explained   that  "propelled  vehicle"                                                               
means that the  vehicle currently is self-propelled,  not that it                                                               
used to be.                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG pointed out that  without HB 102, that theft still                                                               
would be a felony.   "We're trying to lighten up  and not make it                                                               
tougher," he said.                                                                                                              
                                                                                                                                
REPRESENTATIVE BERKOWITZ clarified that taking  a junker car is a                                                               
felony, but taking a junker snow machine is not.                                                                                
                                                                                                                                
Number 1240                                                                                                                     
                                                                                                                                
REPRESENTATIVE MEYER asked what a new snow machine costs.                                                                       
                                                                                                                                
MR.  WORTMAN said  a new  snow machine  costs between  $5,000 and                                                               
$7,500.   The rental rate  would be about  $50 an hour,  $150 for                                                               
six hours, or at least $750 for a week.                                                                                         
                                                                                                                                
REPRESENTATIVE MEYER  thought it seemed  "a little strict"  for a                                                               
16-year-old's theft of a snow machine to be considered a felony.                                                                
                                                                                                                                
MR. WORTMAN  observed, "I think the  qualifiers are here."   If a                                                               
16-year-old  takes  somebody's  snow  machine and  is  intent  on                                                               
depriving the  owner of the  machine permanently, then that  is a                                                               
felony.  If he takes it and  it is returned, that is probably not                                                               
a problem.  If the snow machine  is only worth $500 and he wrecks                                                               
it, it's $500 damage.                                                                                                           
                                                                                                                                
REPRESENTATIVE MEYER added  that if the youth keeps  it more than                                                               
seven days, then it's a felony.                                                                                                 
                                                                                                                                
REPRESENTATIVE  BERKOWITZ   focused  attention  on   the  phrase,                                                               
"deprived of the  use".  If the  owner was out of  town the whole                                                               
time an unauthorized  person was using his snow  machine, he said                                                               
it is arguable that the owner was not deprived of its use.                                                                      
                                                                                                                                
Number 1380                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG said he thought it  came down to whether the owner                                                               
was "constructively" deprived of the use.                                                                                       
                                                                                                                                
REPRESENTATIVE BERKOWITZ said,  "You have to look at  this in the                                                               
light  that's harshest  to the  state and  the light  that's most                                                               
favorable to an accused.  That  certainly would be a defense that                                                               
I think any reasonable defense attorney would raise."                                                                           
                                                                                                                                
Number 1416                                                                                                                     
                                                                                                                                
JERRY   LUCKHAUPT,    Attorney,   Legislative    Legal   Counsel,                                                               
Legislative  Legal  and  Research Services,  Legislative  Affairs                                                               
Agency, Alaska  State Legislature, said  he thought if  the owner                                                               
were  out of  town and  unaware that  the vehicle  was taken,  it                                                               
would  be a  reasonable  interpretation that  the  owner was  not                                                               
deprived of  the use.   If the owner  had someone staying  at the                                                               
home who  noticed that the vehicle  was gone, the owner  would be                                                               
deprived of the use, since  he/she could otherwise have loaned it                                                               
to someone.                                                                                                                     
                                                                                                                                
Number 1480                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ   further  argued  that  HB   102  only                                                               
specifies that the  owner is being deprived of the  use, not that                                                               
the houseguest is being deprived of the use.                                                                                    
                                                                                                                                
MR. LUCKHAUPT  said the  owner has  the right to  the use  of the                                                               
vehicle in  any way  he wants, including  loaning it  to someone.                                                               
It is  a technical term  as to when a  person is deprived  or not                                                               
deprived.   If a person takes  a snow machine while  the owner is                                                               
away, brings  it back  and fills  it up with  gas, and  the owner                                                               
wasn't  aware  that it  was  gone,  then  the owner  hasn't  been                                                               
deprived of  its use; having  taken it is a  misdemeanor, vehicle                                                               
theft in the  second degree.  The felony offense  would not apply                                                               
in that circumstance.                                                                                                           
                                                                                                                                
MR.  LUCKHAUPT  then responded  to  Chair  Rokeberg's request  to                                                               
speak to the question of the  seven-day limit.  He explained that                                                               
seven  days  seemed  like a  reasonable  approximation  based  on                                                               
normal  rental rates.   To  a certain  extent, seven  days is  an                                                               
arbitrary figure.                                                                                                               
                                                                                                                                
Number 1645                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL observed  that in  a rural  area where  a                                                               
snow   machine  or   four-wheeler  might   be  a   person's  main                                                               
transportation,  taking  it  for  less   than  seven  days  could                                                               
endanger life.  He thought that  endangerment had more to do with                                                               
"a real criminal issue" than did the cost of a rental.                                                                          
                                                                                                                                
CHAIR  ROKEBERG  pointed  out  that any  activity  such  as  that                                                               
described is criminal.  The point is  whether it is a felony or a                                                               
class A misdemeanor.                                                                                                            
                                                                                                                                
MR.  LUCKHAUPT  further  explained  that the  time  component  is                                                               
designed  to  address  Representative Kott's  concern  for  those                                                               
owners  who do  not choose  to go  out and  rent another  vehicle                                                               
during the time  theirs is gone or who get  the vehicle back with                                                               
less  than  $500  damage.    The  goal  was  to  provide  another                                                               
component for those  persons who lose their vehicle  for a period                                                               
of time.  It  is an attempt to reclassify some  of the cases that                                                               
now  are  misdemeanors by  saying  that  taking a  person's  snow                                                               
machine for seven days is a  substantial loss, great enough to be                                                               
classified  as a  felony.   Commenting on  HB 102,  he said,  "We                                                               
aren't  taking  cases away  from  current  felonies ...,  we  are                                                               
taking cases  from misdemeanors and  making them felonies.   If a                                                               
person is  out working  a trap  line and  someone takes  his snow                                                               
machine,  other  criminal  charges  would apply.    It  might  be                                                               
considered  murder  or  attempted murder,  assault,  or  reckless                                                               
endangerment.                                                                                                                   
                                                                                                                                
Number 1843                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGAN  said  he thought  he  understood  that  the                                                               
sponsor's  intent   was  to  give   people  who  depend   on  [an                                                               
alternative] vehicle  for their  primary transportation  the same                                                               
status as  those who depend  on vehicles  they drive on  the road                                                               
system.   If a person  lives in rural  Alaska and gets  around by                                                               
four-wheeler or  snow machine and  that vehicle has  been stolen,                                                               
that rises  to the level of  a car being stolen  in urban Alaska.                                                               
"As  a matter  of  fact, they  used to  hang  horse thieves,"  he                                                               
noted.       He   suggested   that   language    about   "primary                                                               
transportation" might  be included in HB  102.  He asked  if that                                                               
was  what  the bill  sponsor  intended  and  if so,  should  that                                                               
language be included?                                                                                                           
                                                                                                                                
MR.  WORTMAN  said the  intent  of  HB  102  is, as  the  sponsor                                                               
statement says,  to level  the playing field  for owners  of ATVs                                                               
and snow machines.  An individual  had brought this up four years                                                               
ago, and  this bill "doesn't fix  all, but it is  a good solution                                                               
to the current situation right now," he said.                                                                                   
                                                                                                                                
Number 1843                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGAN said  he  was  still trying  to  get to  the                                                               
intent of  the legislation.   "Somebody's toy that sits  in their                                                               
yard  isn't   as  important  as  somebody's   primary  source  of                                                               
transportation if  they aren't on a  road system," he said.   Was                                                               
that the intent?"                                                                                                               
                                                                                                                                
CHAIR ROKEBERG said  he didn't think the  sponsor was "interested                                                               
in making  a Bush  exemption; there's  no need  ... to  make that                                                               
distinction."                                                                                                                   
                                                                                                                                
Number 1970                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN said  he did not think taking  a snow machine                                                               
rises to the level of felonious  behavior if the machine is "just                                                               
somebody's toy  that [the thief] keeps  for a week."   He said he                                                               
thought taking  it might  rise to  that level  if the  vehicle is                                                               
something  the  owner   truly  needs  and  depends   upon  for  a                                                               
livelihood.                                                                                                                     
                                                                                                                                
Number 1990                                                                                                                     
                                                                                                                                
MR.  LUCKHAUPT  said  he  understood that  to  be  the  sponsor's                                                               
intent, and  had drafted HB 102  to put snow machines,  ATVs, and                                                               
jet  skis  on  the  same   level  [with  one  another],  and  not                                                               
necessarily to put snow machines on  the same level with cars and                                                               
trucks.  The  current laws still put snow machines  and ATVs on a                                                               
lower  level than  jet  skis, he  explained.   Jet  skis now  are                                                               
included  in   the  broad  definition   of  watercraft.     Other                                                               
committees that have  considered HB 102 have  been concerned that                                                               
it not  put snow machines  and ATVs on  the same level  with cars                                                               
and trucks.                                                                                                                     
                                                                                                                                
MR.  LUCKHAUPT   continued,  saying,  "We  could   try  to  craft                                                               
something that  deals with vehicles  that are used away  from the                                                               
road  system.    But  potentially,  an ATV  or  a  snow  machine,                                                               
regardless  of whether  it  is  a the  person's  primary mode  of                                                               
transportation, may  be very valuable  to the person."   He cited                                                               
the example of  someone 40 miles out in  horrible weather working                                                               
a trap line.   He said he  thought it would be  difficult to draw                                                               
the line,  and that  drawing it  based on  the vehicle  being the                                                               
person's  primary  mode  of  transportation   might  not  be  the                                                               
appropriate way.                                                                                                                
                                                                                                                                
Number 2103                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ  said he  tended  not  to like  "bright                                                               
lines" in  the criminal code.   He  suggested it would  be better                                                               
left to the jury to decide whether  seven days is too long or too                                                               
short a time.   He proposed that  it might be better  to refer to                                                               
being "deprived  of the [vehicle's]  use for a  protracted period                                                               
of time."   "Protracted" is a term on which  there are some court                                                               
interpretations, and also  is an issue on which  both sides could                                                               
argue.  It would depend on the circumstances of the case.                                                                       
                                                                                                                                
Number 2165                                                                                                                     
                                                                                                                                
REPRESENTATIVE  MEYER said  he thought  proponents had  suggested                                                               
that HB  102 might reduce  court costs, but prosecuting  cases as                                                               
felonies rather than as misdemeanors would be more expensive.                                                                   
                                                                                                                                
TAPE 01-21, SIDE B                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
MR.  LUCKHAUPT explained  that HB  102  singles out  the jet  ski                                                               
cases and makes  those misdemeanors instead of felonies.   On the                                                               
other  hand, HB  102  creates  an additional  way  to commit  the                                                               
felony  offense,  by depriving  the  person  of  the use  of  the                                                               
vehicle for seven days.   So some cases are going  to drop out of                                                               
the felony  category into the  misdemeanor process, and  some are                                                               
going to  be added.   There could be  differences in cost  to the                                                               
state or  to a  municipality.  He  mentioned the  Municipality of                                                               
Anchorage,  which prosecutes  the  misdemeanors  while the  state                                                               
handles the felony offenses.                                                                                                    
                                                                                                                                
REPRESENTATIVE  MEYER said  he was  thinking of  Anchorage, where                                                               
the stealing  of snow  machines is  a problem.   In  Anchorage, a                                                               
snow machine  is not  the owner's  main means  of transportation.                                                               
But  as he  understands HB  102, stealing  one's neighbor's  snow                                                               
machine and keeping  it for seven days or returning  it with more                                                               
than $500 damage would be a felony.                                                                                             
                                                                                                                                
MR. LUCKHAUPT said that is correct.   The $500 damage is a felony                                                               
under  existing law.   But  under  existing law,  the person  who                                                               
chooses not to go out and  rent another snow machine while his is                                                               
missing simply  does without.   There is  no compensation  if the                                                               
owner does  not incur those  costs, perhaps by  borrowing someone                                                               
else's snow machine  to check his trap line.   It costs the owner                                                               
a lot  of extra  effort.  Is  that a loss  that is  comparable to                                                               
incurring a $500 cost to rent one?  That was the attempt here.                                                                  
                                                                                                                                
Number 2063                                                                                                                     
                                                                                                                                
REPRESENTATIVE MEYER returned to the  question of overall cost to                                                               
the  legal system.   "So  in your  mind, it  will balance  out by                                                               
lowering one and  raising the other," he observed.   "But in some                                                               
ways,  it  almost sounds  like  we'll  be  saving money  for  the                                                               
municipalities but  maybe adding  more cost ...  to the  state in                                                               
the sense of more felonies being prosecuted."                                                                                   
                                                                                                                                
MR. LUCKHAUPT acknowledged  that was a possibility.   However, he                                                               
pointed  to  testimony  on  Monday,  which  was  "that  everybody                                                               
thought any additional cost would  be negligible because they are                                                               
already prosecuting  most of these  cases somehow."   For someone                                                               
who doesn't  have a previous  conviction, he said  the difference                                                               
in corrections  costs is  probably not that  much different.   He                                                               
said it was hard to quantify.                                                                                                   
                                                                                                                                
Number 1960                                                                                                                     
                                                                                                                                
MARK  T.   MEW,  Deputy   Chief,  Anchorage   Police  Department,                                                               
testified by  teleconference.  In  investigating auto  thefts, he                                                               
had always wondered why stealing a  $1,000 ring or a lawnmower or                                                               
a set of  golf clubs is a misdemeanor but  stealing a $7,000 snow                                                               
machine or a  $5,000 four-wheeler also is a  misdemeanor.  Police                                                               
are going  to investigate and  prosecute these cases anyway.   He                                                               
said he  thinks many  first-time offenders will  plead down  to a                                                               
misdemeanor.   He thinks the cleanest  way to look at  this is to                                                               
make things  over a  certain dollar  level a  felony and  under a                                                               
certain dollar  level a misdemeanor, and  let it go at  that.  He                                                               
said he  does not  know why  something extremely  valuable should                                                               
not be a  felony just because it is not  transportation.  He also                                                               
noted that  $500 meant something  different 20 years ago  than it                                                               
does today,  and suggested  that the dollar  amount for  a felony                                                               
needs to be  raised so that the theft of  "every mountain bike is                                                               
no longer a felony."                                                                                                            
                                                                                                                                
Number 1885                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN  reported that he  had looked up  "felony" in                                                               
Black's  Law  Dictionary  and  found  that  felonious  intent  is                                                             
applied to the  crime of larceny "where a  person knowingly takes                                                               
and carries  away the  personal property  of another  without any                                                               
claim  or  pretense   of  right,  with  the   intent  wholly  and                                                               
permanently to deprive the owner  of his property."  He suggested                                                               
a statute  should be crafted  that fits those parameters  of case                                                               
law.                                                                                                                            
                                                                                                                                
MR. LUCKHAUPT  pointed out that  Representative Ogan  had defined                                                               
what larceny or theft is.  He stated:                                                                                           
                                                                                                                                
     You've got to have this  intent to deprive the owner of                                                                    
     the  property permanently.   That's  how it  existed in                                                                    
     common law,  and that's sort  of what we  have retained                                                                    
     in  our  criminal code.    Therefore,  if someone  does                                                                    
     steal a car  and they take the car in  order to chop it                                                                    
     up for parts, ... we'll  go ahead and charge the person                                                                    
     under ...  the theft statutes....   But in  most cases,                                                                    
     we  aren't able  to prove  that he  had that  intent to                                                                    
     deprive  the  owner  permanently, and  that's  why  the                                                                    
     states  came up  with  things like  "joyriding" or  ...                                                                    
     "criminal mischief."                                                                                                       
                                                                                                                                
     If you  take the car  of another without any  right and                                                                    
     then you  drive around in  it a  while, or you  drop it                                                                    
     off  somewhere, but  you aren't  intending  to keep  it                                                                    
     permanently,  ... that  wasn't  theft,  and that's  why                                                                    
     prosecutors  ran  into  problems in  prosecuting  those                                                                    
     cases  where people  were  only taking  the  car for  a                                                                    
     period  of  time.   People  won  those cases;  criminal                                                                    
     defendants won  and weren't convicted of  theft because                                                                    
     they had no intent to deprive the owner permanently.                                                                       
                                                                                                                                
     So  ... we've  created a  new  crime to  deal with  the                                                                    
     situation  where  all  we  can   prove  is  the  person                                                                    
     intended  to take  the  car, took  the  car away,  and,                                                                    
     therefore,  the owner  suffers some  loss, ...  whether                                                                    
     it's damage to the vehicle  or damage to other property                                                                    
     or merely by  not having access to their  vehicle for a                                                                    
     period of  time.   And so  we've had  to get  away from                                                                    
     what  normally  was  felt  ...  was  theft  or  larceny                                                                    
     because  these  cases didn't  fit  in  there.   It  was                                                                    
     difficult to prove and convict anyone of that.                                                                             
                                                                                                                                
Number 1740                                                                                                                     
                                                                                                                                
REPRESENTATIVE  BERKOWITZ agreed  with  Representative Ogan,  "It                                                               
may be an  esoteric argument, but ... when you  carve out special                                                               
exceptions for vehicle  theft, the next thing you  know, you have                                                               
special exceptions  for weapons  theft or  clothing theft  -- one                                                               
could make a case  for all of them."  He  said he understood that                                                               
the drafters of HB 102 "went  the vehicle theft route" because it                                                               
hinges  on  the  intent  to  deprive  another  of  property,  but                                                               
"deprive"  is  defined  in  the  case  of  Glidden  v.  State  as                                                             
appropriating  property  with  intent   to  withhold  it  for  so                                                               
extended a period as to result in  a loss of the major portion of                                                               
its beneficial use.  One could  argue to a jury that when someone                                                               
takes a car,  even for a day,  the owner is going  to be deprived                                                               
of his  or her  beneficial use.   "I  think the  criminal statute                                                               
should be written as broadly as  possible, and theft in this case                                                               
would cover the  intent to deprive that currently is  swept up in                                                               
vehicle theft," he concluded.                                                                                                   
                                                                                                                                
Number 1671                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL said  he  was struggling  with the  seven                                                               
days, and wondered about saying  something to the effect that the                                                               
owner  is deprived  of reasonable  control  or use;  then a  jury                                                               
could  decide if  the value  of the  danger or  the value  of the                                                               
deprived  time was  above the  $500 limit.   He  asked if  HB 102                                                               
could be  amended so that  the number  of days is  not specified.                                                               
It is  possible that in one  day, the value of  the machine could                                                               
be significant, he added.                                                                                                       
                                                                                                                                
CHAIR  ROKEBERG said  he thought  that already  was addressed  in                                                               
[subparagraph] (B).                                                                                                             
                                                                                                                                
MR.  LUCKHAUPT explained  that if  a person  actually incurs  the                                                               
cost, it is covered in [subparagraph]  (B).  That is the approach                                                               
he was  taking when  he began  drafting, letting  the prosecution                                                               
prove what  a reasonable replacement  value would be.   The owner                                                               
wouldn't  have to  actually incur  the costs  if the  replacement                                                               
value was  $500.   For example, renting  a D-9 Cat  for a  day is                                                               
going to cost  substantially more than $500.  If  someone takes a                                                               
D-9 Cat  for a  few days  now, that's  only a  misdemeanor unless                                                               
there  is $500  worth  of  damage or  the  owner  incurs $500  in                                                               
reasonable  costs to  replace  it.   What  about  the person  who                                                               
doesn't  expend the  cost?   That was  the approach  the drafters                                                               
were  taking,  Mr.  Luckhaupt  said,   but  Dean  Guaneli,  Chief                                                               
Assistant Attorney General, was  not enthusiastic about that from                                                               
a prosecution  standpoint because  he didn't want  to add  to the                                                               
prosecution's  burden  at  trial  by   having  to  prove  what  a                                                               
reasonable replacement cost would have been.                                                                                    
                                                                                                                                
Number 1535                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL  said he appreciated that  discussion.  If                                                               
the damage  happens after the fact,  that is easily proven.   But                                                               
sometimes if  one is deprived  of the  use of something,  that is                                                               
very  costly,  too,  but  there   is  no  physical  damage  done.                                                               
Sometimes time  lost can be  very valuable.  Sometimes  access or                                                               
control over something  creates a liability for the  owner.  That                                                               
is why he  thought "reasonable use or control"  amounting to $500                                                               
was appropriate,  he explained.   That way,  the owner  could say                                                               
the vehicle was only  gone for a day, but it  cost him a contract                                                               
or 14 fish in his fish wheel.                                                                                                   
                                                                                                                                
Number 1490                                                                                                                     
                                                                                                                                
MR. LUCKHAUPT  said that was the  way he had started:   the owner                                                               
incurred or would  have incurred reasonable expenses  of at least                                                               
$500 as a  result of the loss  of the vehicle.   He restated that                                                               
Mr. Guaneli did not want to  add to the burdens on the Department                                                               
of Law.   "It would be easier  on them if [in HB  102] we created                                                               
some defined set of criteria, for  example, a period of time that                                                               
the vehicle was gone," Mr. Luckhaupt added.                                                                                     
                                                                                                                                
Number 1438                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL  ventured, "If in (B)  it's all addressed,                                                               
then maybe  we don't need  (C).  But if  in (C), we're  trying to                                                               
say that that seven-day period is  going to be equivalent to that                                                               
loss, then  we may  need to say,  'the control or  use of  it for                                                               
that period of time' is ... the same value as (B)."                                                                             
                                                                                                                                
CHAIR  ROKEBERG suggested  that it  is implicit  in (C)  that the                                                               
value  is based  on  the length  of time,  based  on a  leasehold                                                               
theory.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  COGHILL  said  he  understood that,  but  he  was                                                               
concerned about the  seven-day issue.  His point  was that having                                                               
a vehicle missing only one day could be a "big deal."                                                                           
                                                                                                                                
Number 1420                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  said he wasn't sure  he understood Representative                                                               
Coghill's point  because the monetary  values would  be reflected                                                               
in the value of whatever vehicle and/or  use that was put to.  So                                                               
one would have  to go through the $500 ceiling,  and with the D-9                                                               
Cat, that  would be reached immediately.   If it's an  old junker                                                               
snowmobile ....                                                                                                                 
                                                                                                                                
REPRESENTATIVE COGHILL  asked:  If  a $5,000 machine  is returned                                                               
undamaged within seven days, how  does the owner demonstrate that                                                               
not having it cost him $500 or more  in a lost contract or a loss                                                               
in  picking up  fish?   Would he  have to  file a  whole separate                                                               
suit?                                                                                                                           
                                                                                                                                
MR. LUCKHAUPT  said for the theft  of a vehicle to  be aggravated                                                               
up to a felony, one would  actually have to incur the cost, spend                                                               
$500 to replace the missing vehicle  while it was gone.  The loss                                                               
of  a  contract  would  not  be considered  under  HB  102.    In                                                               
establishing the  time period, the  drafters were trying  to make                                                               
it easy for everyone to understand.   It isn't a "bright line" in                                                               
regard to the valuation of what  a replacement cost per day might                                                               
be.                                                                                                                             
                                                                                                                                
Number 1258                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGAN said  he thought  one could  prove felonious                                                               
intent  with  the seven-day  rule  "because  if a  person  hasn't                                                               
brought the property  back in a week, he probably  isn't going to                                                               
bring it back."                                                                                                                 
                                                                                                                                
Number 1226                                                                                                                     
                                                                                                                                
DEAN GUANELI,  Chief Assistant  Attorney General,  Legal Services                                                               
Section-Juneau, Criminal  Division, Department of  Law, confirmed                                                               
that  Mr. Luckhaupt  had accurately  characterized  the tenor  of                                                               
their  discussions  and  their interests.    From  a  prosecution                                                               
standpoint,  he said  it's certainly  not attractive  to have  to                                                               
prove on a case-by-case basis what  the rental value of a certain                                                               
property was  in a certain  locale, and it's certainly  easier if                                                               
"we" just pick a number like seven days.                                                                                        
                                                                                                                                
MR. GUANELI continued:                                                                                                          
                                                                                                                                
     On   the    other   hand,   I    certainly   understand                                                                    
     Representative  Coghill's interests  and his  concerns.                                                                    
     If  the  proposal is  to  add  some language,  ...  for                                                                    
     example, where  it says,  "the owner  incurs reasonable                                                                    
     expenses in  the amount of  $500 or more" or  ... [what                                                                    
     in  civil law  is  consequential damages]  -- in  other                                                                    
     words, you could  have done something.   You could have                                                                    
     run your trap lines; you  could have gotten a contract;                                                                    
     you  could have  done something  else.   If that's  the                                                                    
     concept, I  don't have any problem  with including that                                                                    
     as another  way of committing  this offense.   In other                                                                    
     words, you  have significantly  inconvenienced somebody                                                                    
     monetarily.  We  may not be able to prove  that in very                                                                    
     many cases,  but I certainly  don't have  any objection                                                                    
     to including that ... here.                                                                                                
                                                                                                                                
     I  think  there  is  some  danger  to  expanding  these                                                                    
     provisions  too much.   It  wasn't too  many years  ago                                                                    
     that  all joyriding  was a  misdemeanor, and  a lot  of                                                                    
     people were  legitimately upset when they  lost the use                                                                    
     of their  car for a  period of time.   But I  think you                                                                    
     have to  realize that many  of these  offenses, perhaps                                                                    
     most of them, are committed  by kids.  Creating a whole                                                                    
     long list of offenses  where kids are committing felony                                                                    
     offenses  that  get  them  into  juvenile  delinquency,                                                                    
     juvenile  court, that  sort of  thing, I'm  not certain                                                                    
     that's  necessarily appropriate.   On  the other  hand,                                                                    
     things that  they do certainly do  inconvenience people                                                                    
     greatly,  and they're  legitimately upset,  so I  think                                                                    
     there  certainly   is  a  balance....     I  understand                                                                    
     Representative  Coghill's  concerns,  and  I  certainly                                                                    
     would  have no  objection  to including  the notion  of                                                                    
     consequential damages ....                                                                                                 
                                                                                                                                
CHAIR  ROKEBERG  suggested  incorporating  a  change  in  HB  102                                                               
[Version J]:   On [page 1,]  line 12, after [incurs],  to say "or                                                               
could have incurred" reasonable expenses.                                                                                       
                                                                                                                                
Number 1035                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL  said that did  not take into  account the                                                               
value of time lost.                                                                                                             
                                                                                                                                
Number 0990                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ  said he  thought in the  most egregious                                                               
case,  in which  someone took  a  car and  thereby prevented  the                                                               
owner's going to  work for a week, one could  reasonably charge a                                                               
second  count  of  theft.    "The  difficulty  I  see  with  what                                                               
Representative  Coghill suggests  is that  if you  take someone's                                                               
car without  even thinking  that the  person is  not going  to be                                                               
able  to  get  to  work,  getting   to  a  second  offense  is  a                                                               
considerable challenge," he said.                                                                                               
                                                                                                                                
Number 0895                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL  agreed,  adding that  he  could  foresee                                                               
"running  into  some  real troubles"  with  the  seven-day  issue                                                               
outside the urban environment.                                                                                                  
                                                                                                                                
Number 0886                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN  asked Mr. Guaneli  if he concurred  that the                                                               
seven-day time line  is a reasonable measure  of felonious intent                                                               
to permanently deprive someone of property.                                                                                     
                                                                                                                                
MR. GUANELI  explained that the  purpose in coming up  with seven                                                               
days  was not  as  a  measure of  intent  to permanently  deprive                                                               
someone.   "It had  more to do  with what we  thought would  be a                                                               
reasonable rental rate,"  he said.  In many  instances, kids take                                                               
a snow  machine, drive it around,  and leave it in  a place where                                                               
it isn't  found for seven days.   It's not that  they intended to                                                               
permanently take it; it just isn't found for seven days.                                                                        
                                                                                                                                
Number 0737                                                                                                                     
                                                                                                                                
CHARLES KOPP, Vice President,  Alaska Peace Officers Association,                                                               
testified by  teleconference.  He echoed  previous testimony that                                                               
there  is  a  hazard  in  carving out  a  special  exemption  for                                                               
vehicles.      Prosecutorial   discretion  is   very   important,                                                               
especially  when dealing  with  youngsters who  have no  previous                                                               
record of criminal  mischief and with property  that is recovered                                                               
basically undamaged.   Also, it would be difficult  to explain to                                                               
a victim why it takes seven days  for the theft of a snow machine                                                               
to be  considered a felony when  that is not the  case when other                                                               
property [other  than a vehicle]  is stolen.   He said  he thinks                                                               
adding  the   reference  to  seven   days  complicates   the  law                                                               
needlessly.                                                                                                                     
                                                                                                                                
Number 0571                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ  said he thought that  raised a problem.                                                               
It is  one of the  rules of construction  that if someone  can be                                                               
charged  for the  same  conduct under  two  different classes  of                                                               
crime,  then that  person  has  to be  charged  under the  lesser                                                               
degree  of crime,  "So  going  to Theft  2  isn't necessarily  an                                                               
option," he added.                                                                                                              
                                                                                                                                
Number 0530                                                                                                                     
                                                                                                                                
MR. GUANELI said:                                                                                                               
                                                                                                                                
     When  there are  two  statutes that  cover the  precise                                                                    
     same  conduct,  that  does present  some  problems  for                                                                    
     prosecutors.   However,  the court  will  look for  any                                                                    
     difference between  the two statues to  interpret them.                                                                    
     In the  theft statutes, if  we are  able to prove  to a                                                                    
     jury  beyond  a  reasonable  doubt that  there  was  an                                                                    
     intent   to  permanently   deprive  someone   of  their                                                                    
     property, that's  a difference  from the  vehicle theft                                                                    
     statute where that level of  proof is not required, and                                                                    
     we can choose  to go under one or  the other, depending                                                                    
     on the  level of proof  we've got.   So I  don't really                                                                    
     think   that  ...   [the   issue  that   Representative                                                                    
     Berkowitz raised] is an issue here ....                                                                                    
                                                                                                                                
CHAIR  ROKEBERG  observed  that  it  shouldn't  inhibit  the  law                                                               
enforcement  officers from  prosecuting and  fining the  criminal                                                               
because the charge could vary depending on the circumstances.                                                                   
                                                                                                                                
Number 0405                                                                                                                     
                                                                                                                                
MR. GUANELI said he thought that  was right.  There are a variety                                                               
of   potentially  overlapping   statutes  throughout   the  theft                                                               
statutes now,  but there usually is  some element in a  case that                                                               
strongly suggests which statue is most relevant.                                                                                
                                                                                                                                
Number 0351                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL  made  a  motion to  adopt  the  proposed                                                               
committee  substitute  (CS)  for  HB  102,  version  22-LS0347\J,                                                               
Luckhaupt, 2/20/01,  as a work  draft. There being  no objection,                                                               
the proposed CS, Version J, was adopted.                                                                                        
                                                                                                                                
Number 0262                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL offered Conceptual  Amendment 1:  "On page                                                               
1,  line  12,  after  the  word  "incurs",  put  "or  could  have                                                               
incurred".                                                                                                                      
                                                                                                                                
Number 0234                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ  objected.   He said he  appreciated the                                                               
idea but thought Conceptual Amendment 1 was vague.                                                                              
                                                                                                                                
Number 0205                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL  responded to the objection,  saying, "The                                                               
rest  of the  sentence spells  out that  it would  be about  $500                                                               
value  loss, and  he  thought by  rules  of interpretation,  that                                                               
would stay within that context."                                                                                                
                                                                                                                                
REPRESENTATIVE BERKOWITZ maintained his objection.                                                                              
                                                                                                                                
Number 0159                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGAN  recalled  testimony that  what  could  have                                                               
happened,  rather than  what  did happen,  was  getting into  the                                                               
civil area of the law.                                                                                                          
                                                                                                                                
CHAIR ROKEBERG defended  the amendment based on the  idea that an                                                               
action could have occurred but  did not necessarily have to occur                                                               
to prove value.                                                                                                                 
                                                                                                                                
CHAIR ROKEBERG declared a brief at-ease  in order for the tape to                                                               
be changed.   [Tape 01-21  stopped with approximately  one minute                                                               
left unused.]                                                                                                                   
                                                                                                                                
TAPE 01-22, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  called  the  meeting   of  the  House  Judiciary                                                               
Standing Committee back to order.                                                                                               
                                                                                                                                
A roll call vote was  taken.  Representatives Meyer, Coghill, and                                                               
Rokeberg  voted  for   Conceptual  Amendment  1.  Representatives                                                               
Berkowitz, Kookesh,  and Ogan voted against  Conceptual Amendment                                                               
1.  Therefore, Conceptual Amendment 1 failed by a vote of 3-3.                                                                  
                                                                                                                                
Number 0092                                                                                                                     
                                                                                                                                
REPRESENTATIVE MEYER again mentioned that  $500 did not seem like                                                               
much money, and offered Conceptual  Amendment 2, "that everywhere                                                               
we see $500  that it be $1,000", specifically on  [page 1,] lines                                                               
11 and 13.                                                                                                                      
                                                                                                                                
Number 0145                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ  spoke in favor of  Conceptual Amendment                                                               
2.    He  pointed  out   that  the  Criminal  Justice  Assessment                                                               
Commission  (CJAC) recommended  that the  legislature double  the                                                               
dollar  amounts  that  define  the  levels  of  property  crimes.                                                               
Conceptual Amendment  2 is  consistent with  that recommendation,                                                               
which was based on a review in the recent past.                                                                                 
                                                                                                                                
REPRESENTATIVE MEYER  added that changing the  dollar amount gets                                                               
to the point  that Representative Ogan had  raised about somebody                                                               
stealing a junker car.   Under Conceptual Amendment 2, the junker                                                               
would have a value of at least $1,000.                                                                                          
                                                                                                                                
CHAIR OGAN noted that  the junker would not be a  car, but a kind                                                               
of  propelled vehicle  not including  a  car, truck,  motorcycle,                                                               
motor home, bus, aircraft, or watercraft.                                                                                       
                                                                                                                                
MR.  WORTMAN,  representing  the  sponsor  of  HB  102,  deferred                                                               
comment to Mr. Luckhaupt.                                                                                                       
                                                                                                                                
CHAIR ROKEBERG asked Mr. Guaneli  if Mr. Berkowitz's recollection                                                               
about the (CJAC) recommendation was applicable in this instance.                                                                
                                                                                                                                
Number 0271                                                                                                                     
                                                                                                                                
MR. GUANELI said he thought it  would be applicable.  However, he                                                               
thought  the  CJAC  recommendation  "was  to  double  the  felony                                                               
threshold for theft  for all theft offenses, and  that would mean                                                               
regular theft, criminal mischief, vehicle  theft, et cetera."  He                                                               
said  he thought  there was  some danger  in just  increasing the                                                               
amount for  one particular type  of theft and leaving  the others                                                               
at $500.   He said  he feared that  the issue that  Mr. Berkowitz                                                               
had  raised about  "similar  conduct  with similar  consequences"                                                               
being  covered under  two separate  statutes might  apply.   "You                                                               
damage a vehicle in the amount  of $750, it's only a misdemeanor,                                                               
but you damage any other type  of property in the amount of $500,                                                               
and  it's a  felony criminal  mischief," he  said.   He suggested                                                               
what  was  needed  was  to  comprehensively,  across  the  board,                                                               
increase all of the dollar amounts.                                                                                             
                                                                                                                                
MR.  LUCKHAUPT said  he  had  nothing he  wished  to  add to  the                                                               
discussion.                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  declared that Conceptual  Amendment 2  was before                                                               
the  committee.    He said  that  notwithstanding  Mr.  Guaneli's                                                               
comments, he did not object to the amendment.                                                                                   
                                                                                                                                
Number 0493                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL objected, saying  he thought the committee                                                               
should not  increase the amount in  this one instance, but,  as a                                                               
matter of equity, should make the increase across the board.                                                                    
                                                                                                                                
CHAIR  ROKEBERG   took  exception  to   Representative  Coghill's                                                               
objection,  "because  we'd  never  get  any  bills  out  of  this                                                               
committee if we did that."                                                                                                      
                                                                                                                                
REPRESENTATIVE OGAN asked if the  maker of the motion [Conceptual                                                               
Amendment 2] wished to continue with the motion.                                                                                
                                                                                                                                
REPRESENTATIVE MEYER said he did wish to continue.                                                                              
                                                                                                                                
Number 0602                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL maintained his objection.                                                                                
                                                                                                                                
A roll call vote was  taken.  Representatives Berkowitz, Kookesh,                                                               
Ogan,  Meyer,  and Rokeberg  voted  for  Conceptual Amendment  2.                                                               
Representative  Coghill  voted  against Conceptual  Amendment  2.                                                               
Therefore, Conceptual Amendment 2 passed by a vote of 5-1.                                                                      
                                                                                                                                
Number 0650                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGAN moved to report  HB 102, version 22-LS0347\J,                                                               
Luckhaupt, 2/20/01, as amended,  out of committee with individual                                                               
recommendations and  the accompanying fiscal notes.   There being                                                               
no  objection,   CSHB  102(JUD)  was  reported   from  the  House                                                               
Judiciary Standing Committee.                                                                                                   
                                                                                                                                

Document Name Date/Time Subjects