Legislature(2015 - 2016)CAPITOL 120
04/13/2015 01:00 PM JUDICIARY
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HB 7-HOMICIDE OPERATING VEHICLE, PLANE, BOAT 2:28:59 PM CHAIR LEDOUX announced that the final order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 7, "An Act relating to murder in the second degree and manslaughter." 2:29:11 PM REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, pointed out that, especially in South Central Alaska, there has been a rash of vehicle versus pedestrian, and vehicle versus biker, deaths. He referred to an email from the Department of Transportation indicating that in 2010-2014, there were 29 pedestrian fatalities, and 5 cyclist fatalities in Anchorage alone. The combination during that window of pedestrian and cyclists deaths constitutes almost 23 percent of all traffic fatalities in Alaska, he explained. This is a serious problem for vulnerable pedestrians and cyclists as it is an appealing mode of transportation, and cities are now designed to facilitate that type of transportation for the well-being of everyone. He specified that this bill does not require all drivers to be perfect in that there are bad pedestrians, and bad cyclists who injure themselves or contribute to their own injuries by their negligence. Currently, he related, Alaska is one of 3 states out of 50 without vehicle homicide statutes, even though under existing provisions under AS 11.41.110 and AS 11.41.120, the state often successfully charge murder in the second degree and manslaughter. He suggested Alaska implement a statute plainly calling these crimes, should they become culpable enough to be prima facie crimes, what they are which is types of vehicular homicide. He posited that juries are entitled to use its intuitive sense and say, "you are having to describe that this vehicle is a dangerous instrument, under probably 11.81.900, and they get there ... I think they get there ... we'll hear from the state whether sometimes they can't make that leap because they are looking for a knife or a gun." He opined that without shifting any particular burdens in these trials, the state is allowed to have a vehicular homicide law more plainly intuitive. 2:34:25 PM REPRESENTATIVE JOSEPHSON advised that he is aware that a factor of the equation is good urban design and city planning. Arguably, he stated, currently there are 21 types of murder in the second degree in that while there are five subsections, there are subsections and clauses within those. He advised this bill adds the crime of murder in the second degree if a person caused the death of another person while operating a motor vehicle, watercraft, or aircraft, under circumstances manifesting in extreme indifference to the value of human life. He explained that while online, he observed 124 cases discussing extreme indifference, although he could not find extreme indifference in the statute he is positive there are jury instructions in every superior court defining extreme indifference as it is a very high standard and threshold. He emphasize that the intent of the bill is not to just target drunk drivers, but bad drivers such as operating a cell phone. 2:35:33 PM CHAIR LEDOUX asked the difference in targeting bad drivers and people who have been negligent, who have done something stupid. Something stupid is not necessarily extreme indifference to human life, she argued. REPRESENTATIVE JOSEPHSON agreed with Chair LeDoux, and referred to Sec. 2, amending manslaughter which says "if a jury can show that someone recklessly caused the death of another person while operating a motor vehicle, watercraft, or aircraft, that that would be a prima facie ... well, the jury would have convicted them if they'd made that finding, but law enforcement would have to find a prima facie case that someone reached the definition of recklessness in order to even bring the case and bring an indictment." 2:36:47 PM REPRESENTATIVE KELLER assumed Representative Josephson was referring to 124 cases wherein that terminology was used by the prosecuting attorney. He asked whether extreme indifference is a term currently in Alaska Statute, including the instructions Representative Josephson implies exist as he would like to review the examples. He offered that he has never seen that terminology in the murder statute. REPRESENTATIVE JOSEPHSON offered that the term comes from the Model Penal Code under Neitzel v. State, 655 P.2d 325 (Alaska Ct. App. 1982). He explained this is a tentative draft, but Representative Keller may get a taste of it. He related, "A person with the crime of murder if he recklessly causes the death of another person under circumstances manifesting in extreme indifference in the value of human life." He offered another test applied in the law ... REPRESENTATIVE KELLER interjected that he was speaking to Alaska statutes and not case law as this is entering new terminology in Alaska statute. He opined that the legislature does not want to do that lightly because it does not want to follow case law arguments. REPRESENTATIVE JOSEPHSON related that extreme indifference is currently in statute and not necessarily in murder in the second degree or manslaughter. He explained there is a four-pronged test applied regarding social utility, magnitude of risk, actor's knowledge of risk, and precaution the actor takes to minimize the risk. He reiterated it is a high threshold and he is not trying to put people in prison. 2:39:48 PM REPRESENTATIVE GRUENBERG referred to [Section 1, AS 11.41.110(a)(2)], page 1, lines 8-10, which read: (2) the person knowingly engages in conduct that results in the death of another person under circumstances manifesting an extreme indifference to the value of human life. REPRESENTATIVE GRUENBERG pointed to the term in that statute. He then referred to [Section 1, AS 11.41.110(a)(6)], page 2, [lines 18-20], which read: (6) the person caused the death of another person while operating a motor vehicle, watercraft, or aircraft under circumstances manifesting in extreme indifference to the value of human life. REPRESENTATIVE GRUENBERG opined that the above new subsection is virtually identical to Section 2, of the current bill. He said the only technical language difference is that Section 2, talks about knowingly engaging in conduct that results in the death, and the language on page 2, line 18, says "causes the death." He opined that the word "cause" is identical in effect to the current language and asked whether it is the sponsor's intent that the word "cause" is any different than the current language. REPRESENTATIVE JOSEPHSON responded he is confident that under the default statute where there is an absence of culpable militate as to conduct in subsection (6) the culpable militate would be knowing as in subsection (2), and as to circumstance it would be reckless. He highlighted that it is common to have different theories of one case in that the prosecutor looks at the bad act and may charge it in different manners. As the facts flesh themselves out in approaching trial, settle on the most reasonable, or the best as the one for which the evidence is most supportive, he submitted. While he agree that subsection (6) could be subsumed by subsection (2), he continues to assert the fact that Alaska does not have the vehicular homicide statute is unnecessary as a matter of policy, he posited, he said. It creates more burden for the prosecution that is unnecessary and not intuitive to the jury, he contended. 2:42:54 PM REPRESENTATIVE CLAMAN pointed to the premise that Alaska lacks a vehicular homicide statute and advised it troubles him because he has defended vehicular homicide crimes that were charged as manslaughter or murder in the second degree depending upon the circumstances. Often the debate is whether it is manslaughter or negligent homicide and the jury is involved in the topic about mental state, circumstance, the whole range of circumstances, and when starting with the premise that Alaska lacks a vehicular homicide statute, he does not see that. He contends that when the Model Penal Code was adopted in large part and rewrote the Alaska Criminal Code in 1980, there was an intentional effort to place crimes involving the typical vehicular homicide crime as manslaughter, and it would only be exceptional vehicular homicide case that would become second degree murder. REPRESENTATIVE JOSEPHSON advised that last week the 9th Circuit Court of Appeals in the case Gibson v. Johnson, No. 13-35087, D.C. No. 3:11-cv-00432-AC, reached the correct conclusion and had to wrestle with the topic of "when is a vehicle a dangerous instrument." This is something that as a matter of policy and should be dispensed with, he opined. 2:45:39 PM REPRESENTATIVE CLAMAN asked that Representative Josephson cite one case in which the Court of Appeals got it wrong. REPRESENTATIVE JOSEPHSON answered that is a lifeline question. REPRESENTATIVE CLAMAN surmised that he could not cite a case in which the Court of Appeals got it wrong, and offered he is familiar with a number of cases and his memory is that it pretty much got it right every time. REPRESENTATIVE JOSEPHSON directed the committee to the packet and noted there is a comment in a newspaper article from Ms. McDaniel, a long time criminal attorney, highlights the fact that due to a cultural predisposition, the state does not sanction drunk driving homicide the way it sanctions other types of homicide. 2:46:46 PM REPRESENTATIVE GRUENBERG asked whether another way of approaching the problem is to include in the definition somewhere that this conduct may include vehicular conduct, without creating a new crime. REPRESENTATIVE JOSEPHSON responded that is not the approach he and the drafters took, but understands what Representative Gruenberg is saying. REPRESENTATIVE GRUENBERG reiterated to include in a definition, and make it clear to one and the world that this conduct does include, but is not limited to, vehicular conduct. REPRESENTATIVE JOSEPHSON answered that Representative Gruenberg's suggestion is an option, and remarked there has to be a legislative role in this as Alaska is suffering from a rash of these problems. He has confidence that law enforcement can separate the egregious and criminally culpable from the others, he offered. 2:48:15 PM CHAIR LEDOUX said she identifies with Representative Claman in that there are all sorts of vehicular homicide and manslaughter crimes involving vehicles and wondered whether this is a solution looking for a problem that may not exist. 2:48:52 PM REPRESENTATIVE GRUENBERG deduced that the problem could be solved as a definition. CHAIR LEDOUX stated, "Assuming there actually is a problem." CHAIR LEDOUX opened public testimony. 2:49:51 PM KARLA HART said she participates in bicycle tours and does not often ride in Juneau because it does not feel safe. She said she traveled to the Netherlands to investigate the bicycle culture and infrastructure and found that the signs, trails, and everything were great. She then realized the people on the road were actively looking out for her safety in their cars because Netherlands law reads that when a car hits a pedestrian or a bicyclist the car is at fault. She advised the culture of the Netherlands works to train people so that there are far fewer injuries because they actively do not hit people. She opined that Alaska law reads "if you want to kill somebody in Alaska hit them with a car and say it was their fault." She remarked there is model legislation from the League of American Bicyclists addressing more that could be added on to this bill, or supplemented, which is a deterrence. Currently, the people charged with a felony under HB 7, will not be deterred by the existence of this bill, she expressed, as the language with the model legislation says, "a person who operates a motor vehicle in a careless or distracted manner and causes serious physical injury or death to a vulnerable roadway user shall be guilty of infliction of serious physical injury or death to a vulnerable roadway user. And that person will be issued a citation under this section and required to attend a hearing before a court of appropriate jurisdiction." She pointed out that the choice was specifically to require a court appearance and not just pay a ticket and get away from it. Further, she commented, it has a person having been committed under this statute required to have driving privileges suspended for six months. She reiterated that when a person is careless and causes a serious injury or death to a bicyclist they lose their license for six months which is a deterrence to more people to get to the safety of bicyclists than just going after the most egregious. She pointed out that there are many people in the bicycle community as well as other vulnerable roadway users, including highway flaggers, people on the highway fixing flat tires, kids on skateboards, scooters, and many different users. 2:54:16 PM REPRESENTATIVE GRUENBERG offered that the bill has a lot of merit. 2:54:39 PM REPRESENTATIVE CLAMAN emphasized that his questions on this bill do not reflect his dedication to making it safer for bicyclists. He has substantial questions because he is not sure there is a problem and that the homicide statutes should be amended, he reiterated, and expressed his concern in getting drivers to more seriously take their duty to protect pedestrians and bicyclists because those without a car around them are vulnerable. CHAIR LEDOUX commented she identifies with Representative Claman on this issue having just bought a bicycle. CHAIR LEDOUX closed public testimony after ascertaining no one further wished to testify. CHAIR LEDOUX asked Richard Svobodny whether this bill is necessary. 2:56:47 PM RICHARD SVOBODNY, Deputy Attorney General, Criminal Division, Department of Law, said "the sky is not going to fall in ... fall down if this bill doesn't pass." He advised that prior to Representative Josephson introducing HB 7, the Anchorage District Attorney, and Anchorage Deputy District Attorney, both having practiced in other jurisdictions, suggested there be a vehicular homicide statute for two reasons. He pointed out that one reason is that prosecutors want to be consistent in the manner they charge as someone should not be charged differently in Palmer with the same facts as in Kenai. Prosecutors should be consistent with the conduct and mental states the same. This bill puts prosecutors closer to consistency because there are specific sections of both homicide and manslaughter that a prosecutor would look to in order to make a determination as to, how do these facts fit this law and, hopefully, the law would be more consistent, he explained. He offered that the other issue is that when someone is charged with the crime of manslaughter, or murder, it is difficult for the jury to get their minds around ... the discussion is regarding killing people. Under these circumstances that is a gross deviation for standard of conduct that a reasonable person would use, or in extreme indifference to the value of human life - the two different standards for manslaughter and criminally negligent homicide, he further explained. When discussing people using a car in a grossly inappropriate manner resulting in death, grossly inappropriate manner is the difference in present statutes of committing negligent homicide and manslaughter. He advised this bill takes out, from those two standards the jury's consideration that the conduct is driving an automobile. Under Gibson, the exact issue for the 9th Circuit Court of Appeals decision, "is a motor vehicle a dangerous instrument" and the court concluded it was. With regard to Representative Claman's question, "they always get it right," as they are the Court of Appeals. 3:00:41 PM CHAIR LEDOUX asked whether there has been any court in the country or universe that has ever concluded that a car is not a dangerous instrument. MR. SVOBODNY advised he does not have the answer to that question as it is all fact determined. CHAIR LEDOUX asked whether he could imagine a court, where someone had been injured with a car, not concluding that a car was a dangerous instrument. She further asked whether there is really that much to grapple with. MR. SVOBODNY pointed out that Chair LeDoux set the parameters in that someone has been hit with a car. He commented that when previously asked he was thinking ... so a person is in the car, lets the engine run, they die from carbon monoxide ... he does not know the answer. The jury may review a dangerous instrument as a gun, a knife, and ask whether a car is a dangerous instrument. He advised those were the reasons the front line prosecutors said they need to follow 47 other states and implement a vehicular homicide statute. 3:02:17 PM REPRESENTATIVE CLAMAN asked whether Mr. Svobodny is familiar with any Alaska cases, 9th Circuit Court of Appeals, or Alaska Supreme Court cases in which vehicular homicide was the issue wherein the court concluded the vehicle was not a dangerous instrument. He further asked whether the courts have consistently found when challenged that it is a dangerous instrument for purposes of either negligent homicide, manslaughter, or second degree murder. MR. SVOBODNY replied that last week the court said, in a robbery case, that the car was a dangerous instrument and the two-three cases the court cited in that case were vehicular homicide cases that decided a vehicle is a dangerous instrument. CHAIR LEDOUX advised HB 7 is held over. 3:03:50 PM REPRESENTATIVE GRUENBERG questioned whether the language could specify in subsection (2), page 1, line 8, that the conduct includes operating a motor vehicle, and the same on page 2, line 23, it could read "under circumstances including the operating of these vehicles." He pointed out, thereby indicating the legislature's intent to make it clear that under these two statutes, it includes the operation of the vehicle. 3:04:36 PM MR. SVOBODNY replied that he is not the sponsor and was not certain it met the sponsor's goal. He suggested putting it in Section 1, page 1, line 8, "the person knowingly engages in conduct including the operation of a motor vehicle." [HB 7 was held over.]