Legislature(2009 - 2010)BUTROVICH 205
04/07/2010 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB303 | |
| HB386 | |
| SB222 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 222 | TELECONFERENCED | |
| + | SB 303 | TELECONFERENCED | |
| + | HB 386 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 292 | ||
| = | SB 249 | ||
HB 386-CITATIONS
8:41:08 AM
CHAIR FRENCH announced the consideration of HB 386. [CSHB
386(FIN) was before the committee.]
REPRESENTATIVE MIKE HAWKER, sponsor of HB 386, said he
introduced the bill at the request of the Department of Public
Safety (DPS). It empowers DPS to prescribe a uniform format for
citations as well as a standardized process for people to deal
with the citations they have received. DPS believes that this
would reduce costs and increase operating efficiency,
particularly as the use of electronic technology increases.
Although the bill addresses a lot of different sections of
statute, many of the changes are conforming.
8:43:17 AM
JULIE LUCKY, staff to Representative Mike Hawker, said she would
go through the prepared overview that is in the packets, which
addresses 10 of the 65 sections in the bill. Section 21 sets out
the requirements for the standard citation format. It requires
the commissioner of DPS to prescribe a standard format and to
adopt regulations to do so. It also sets out, in a new section
of law, certain things that need to happen with citations.
Section 22 has technical changes to put the language in active
voice and on page 6, line 7, the phrase "has reasonable and
probable cause to believe" has been replaced with the words
"reasonably believes." This new language mirrors other places in
statute where somebody has to make a judgment, but it's not a
probable cause where there is an actual violation.
CHAIR FRENCH opined that it's a good change. Joining "reasonable
cause" and "probable cause" in the same sentence is confusing
because they are two different standards. He asked if they
learned in other committees that "reasonable belief" is probably
an appropriate field-screening standard for an officer.
MS. LUCKY answered yes, and it seemed like a reasonable change.
Section 23 removes a provision from AS 12.25.190 that says a
person can request a hearing that is earlier than five days
after a citation was issued. She related her understanding that
if someone did need an earlier hearing, there is still a method
to request that. This section also deletes language that refers
to deadlines, which is no longer needed because of the approval
of standard deadlines, she said.
Section 24 is included in the bill because of the Voting Safety
Act. It looks very similar to Section 23, but it has an
effective date. If the Voting Safety Act sunsets, this will
become law, she said.
8:47:57 AM
Section 25 amends AS 12.25.195(a). It adds the clarifying
language, "does not contest the citation" and inserts a 30-day
deadline for paying the fine for a scheduled offense.
Section 26 addresses the form for citations. She pointed out
that there is a requirement that the citation be in writing.
Most of the other changes in this section are technical in
nature. Section 27 amends AS 12.25.210(a) and talks about record
keeping requirements for peace officers. It says that if the
issuing agency fails to file the citation in a timely fashion,
that is not a basis for dismissal of the citation.
Sections 28 and 29 make technical changes to include other
agencies, not just peace officers in these statutes.
8:51:00 AM
Sections 30 and 31 are the penalty sections that outline what
happens to someone who doesn't pay their bail or follow the
requirements outlined by the citation. She noted that concern
had been expressed that this might make some of these offenses a
higher misdemeanor crime, but that is not the case. "Department
of Law assures me that we are not making a misdemeanor where
there wasn't one before," she said. Section 30 amends AS
12.25.230(a) and specifically says that a person who fails to
appear to answer their citation is guilty of a class A
misdemeanor. Section 31 repeals and reenacts AS 12.25.230(b) and
specifically says that a person who fails to appear to pay their
fine or to appear in response to their citation for a scheduled
offense is guilty of a class B misdemeanor.
MS. LUCKY said the aforementioned sections contain the "meat" of
the bill. "The majority of the bill is just conforming to those
changes and deadlines."
CHAIR FRENCH summarized that Sections 30 and 31 provide
penalties for someone who essentially does not deal with the
citation they were issued.
MS. LUCKY agreed.
CHAIR FRENCH asked her to give examples of scheduled and
unscheduled offenses.
MS. LUCKY explained that a scheduled offense is an offense for
which there is a scheduled fine. For example, if you park in the
wrong place the fine is X dollars. An unscheduled offense is an
offense that does not have a schedule of fines.
CHAIR FRENCH asked if speeding is an unscheduled offense.
MS. LUCKY deferred to the Department of Public Safety.
8:54:01 AM
KAT PETERSON, Lieutenant, Division of Alaska State Troopers,
Department of Public Safety (DPS), informed the committee that
speeding is a scheduled offense; a bale amount can be provided
on the citation itself. Unscheduled offenses are those that
require a mandatory court appearance to find out the bail. These
include minor consuming, minor operating a vehicle after
consuming alcohol, and tampering with official traffic control
devices.
CHAIR FRENCH asked about possession of marijuana.
LIEUTENANT PETERSON replied that is a criminal offence. The
unscheduled offenses she mentioned are mandatory infractions and
there aren't a lot of those still on the books that don't have
bail on the schedule until you get into the criminal offenses
like driving while your license is suspended. She added that
speeding over 20 miles per hour in a school zone is a mandatory
infraction that requires a court appearance.
CHAIR FRENCH recapped that if a person doesn't show up to pay a
fine for a scheduled offense, they are guilty of a class B
misdemeanor. Those offenses would include speeding or driving
with a headlight or taillight out. But if a person doesn't show
up for a minor consuming, minor operating a vehicle after
consuming alcohol, or tampering with an official traffic control
device, the person is guilty of a class A misdemeanor.
LIEUTENANT PETERSON agreed.
8:56:44 AM
SENATOR COGHILL recalled a deliberate policy call that was made
in the House that gave fire departments the ability to issue a
citation for CO emissions, but no penalty was attached. Noting
2
that the Fairbanks Northstar Borough is currently debating
whether or not particulates from a furnace should be an offense
and if it should have a class A misdemeanor attached, he
questioned how the broadened authority under this bill would
reach into the police or some local area and affect a local
ordinance.
MS. LUCKY said the bill does contain the language, "or
specifically provided by law" but she is unsure whether or not
that would include an ordinance. She offered to check with
legislative legal to find out.
SENATOR COGHILL said he wouldn't hold the bill up but he knows
that various communities are for a variety of reasons going to
make these policy calls to issue citations. What they're really
saying is they want to be able to apply pressure to change
certain behaviors, but they don't want to assess a fine.
MS. LUCKY said she doesn't believe it would be an issue because
a fine of zero is allowed, but she would double check.
9:00:04 AM
CHAIR FRENCH asked Lieutenant Peterson what the maximum penalty
is for a minor in possession or consuming alcohol for the first
or second offense.
LIEUTENANT PETERSON explained that it's an infraction for the
first and second offense. The maximum penalty is a $300 fine,
but most people receive a $100 fine.
CHAIR FRENCH asked if there is any mandatory community service.
LIEUTENANT PETERSON replied she hasn't seen that.
CHAIR FRENCH said he bought this up because he's puzzling over
whether or not this ratchets up the penalty too much. If this
were to become law, someone who is under age 21 and misses their
court hearing would face a year in jail instead of owing a $300
fine. That's the same penalty that's applied to somebody who is
charge with domestic violence or DWI and misses their court
hearing. People need to deal with their citations, but generally
failure to appear is penalized at the same level as the charge,
he said. If the charge is a misdemeanor and you miss court it's
a misdemeanor and if the charge is a felony and you miss court
it's a felony. Under this bill, people who miss court on a
speeding ticket would face jail time.
LIEUTENANT PETERSON said most misdemeanor charges result in a
fine rather than jail time. She also pointed out that most of
the behaviors that are on a scheduled fine are processed through
the permanent fund dividend (PFD) and they aren't changed to a
class A or class B misdemeanor.
CHAIR FRENCH asked if she's saying that if you miss court you'll
be found guilty and assessed a fine that will be garnished from
your PFD, but you probably won't get charged with failure to
appear.
LIEUTENANT PETERSON replied that's what's currently happening.
9:03:04 AM
SENATOR WIELECHOWSKI asked if there had been and discussion
about removing the language "has reasonable and probable cause
to believe" from page 6, lines 7-8.
CHAIR FRENCH explained that it eliminates the confusion of
joining the standard of reasonable cause and the standard of
probable cause in the same sentence. The phrase "reasonable
beliefs" replaces that language and the Department of Law may
want to talk about why that is significant, he said.
DAVID BROWER, Assistant Attorney General, Criminal Division,
Department of Law, addressing the questions about changing AS
12.25.230(a) to a class A misdemeanor and AS 12.25.230(b) to a
class B misdemeanor, clarified that there are several
misdemeanors that are specific and AS 12.25.230 was a specific
misdemeanor. You could get up to a year in jail under
subsections (a) and (b) and a fine of $1000. That wasn't an A
misdemeanor because an A misdemeanor has a higher fine, he said.
CHAIR FRENCH said it's called a special class misdemeanor.
MR. BROWER agreed. He explained that failure to appear is an
unclassified misdemeanor because it doesn't have a particular
fine. It's neither an A misdemeanor nor a B misdemeanor so the
proposed change in .230 to an A misdemeanor in subsection (a)
and a B misdemeanor in subsection (b) actually lowers the
penalty. Current law says that someone who has a bailable
offense can pay their fine, but if and they don't appear the
citation is converted into a summons. That's impossible, he
said, because a summons has to indicate the crime for which the
person is summoned for and a citation wouldn't have that because
failing to appear is a different crime. But a person wouldn't
automatically get charged with failure to appear, because that
has to come from the prosecutor.
Addressing the question about reasonable cause and probable
cause, he explained that in the law there are terms of art like
"probable cause" and "reasonable suspicion" and sometimes they
get mixed up in statute and have to be changed. He provided an
example. In this statute, where there's reasonable cause and
probable cause, it's giving the police the discretion to arrest
someone, but the primary goal isn't to make an arrest unless the
officer reasonably believes that the person is a danger or has
probable cause to believe the person is a danger. He continued
to say:
If you have probable cause to believe a crime was
committed, you can look at certain elements and see if
those elements are present. If you have probable cause
to believe someone is a danger, I think it turns on a
reasonable belief because there is no crime with
danger and what would probable cause be. I think it
was too confusing, but I don't think that the change
will have any practical effect.
SENATOR WIELECHOWSKI said he thought he heard him say that
reasonable cause is a lower standard than probable cause.
MR. BROWER replied reasonable cause isn't really a standard, but
reasonably believes would be a standard.
CHAIR FRENCH said reasonable suspicion is the field context for
a pat and frisk.
MR. BROWER said reasonable suspicion and probable cause are
terms that are used for police and courts to determine whether
an officer had a reasonable suspicion to believe that some type
of crime was happening. Probable cause requires that the
elements of the crime are actually met by certain facts that the
officer knows. In this case, the officer has probable cause to
cite the person for the violation and can make an arrest if the
person refuses to take the citation or refuses to identify him
or herself. The officer can also make an arrest if he or she
makes the determination that the person is a danger.
SENATOR WIELECHOWSKI said it seems that this makes it easier for
officers to arrest someone.
MR. BROWER replied that's not the case because the officer
already has the authority to arrest someone in that situation
because they have probable cause.
SENATOR WIELECHOWSKI reread the language and agreed that in this
situation it's purely the officer's discretion to either issue
the citation or take the person to the court.
MR. BROWER said that's right and the language in the section
that had reasonable cause and probable cause was essentially
taking that discretion away and requiring the officer to arrest
someone.
9:09:58 AM
CHAIR FRENCH asked Ms. Lucky where the bill goes after it leaves
this committee.
MS. LUCKY said this is the last committee of referral. She
informed the committee that this phrase doesn't appear anywhere
else in statute, but AS 47.12.245 However, there is another
section of statute 47.12.245 regarding delinquent minors talks
about when a peace officer should and should not make an arrest.
In that statute, a peace officer can make an arrest anytime he
or she reasonably believes the minor is a fugitive from justice
or has probable cause to believe the minor has violated a
condition of the minor's release or probation. This illustrates
the point DOL is talking about where you have probable cause
that a violation has occurred; where you have elements of a
crime or a reasonable belief and the peace officer has to make a
determination about the state of affairs or state of mind of the
person they are citing.
CHAIR FRENCH announced he would hold HB 386 for further
consideration.
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