HB 386 - CITATIONS  1:08:43 PM CHAIR RAMRAS announced that the first order of business would be HOUSE BILL NO. 386, "An Act establishing a uniform format and procedure for citations for certain violations of state law; relating to the form, issuance, and disposition of citations for certain violations; relating to certain crimes and penalties for noncompliance with citations; and providing for an effective date." 1:08:59 PM REPRESENTATIVE MIKE HAWKER, Alaska State Legislature, informed the committee that HB 386, the "Ticket Simplification Act," was crafted largely with the assistance and insistence of the Department of Public Safety (DPS). This legislation, he explained, provides DPS the authority to prescribe a uniform citation format and process for moving citations forward. The intent is to have much greater efficiency with the necessary paperwork for the state's justice system and facilitate the utilization of electronic records for which consistent format is essential for processing. 1:11:30 PM JULI LUCKY, Staff, Representative Mike Hawker, Alaska State Legislature, relayed on behalf of the sponsor, Representative Hawker, that the legislation has a lot of redundant language throughout the 63 sections of HB 386. She directed the committee's attention to a document entitled "HB 386 Uniform Citations - Overview." She explained that Sections 21-31 of HB 386 encompass the uniform citation process and format. The aforementioned sections outline the format of each citation, clarify when an officer can issue a citation versus making an arrest, and set standard and consistent deadlines for delivery of citations to the court, answering citations when not required to go to court, and what must be done with scheduled offenses. Scheduled offenses are offenses for which one doesn't have to go to court and for which there is a specific fine or bail associated with the offense. These sections also outline recordkeeping processes and have a consistent penalty for failure to pay a fine or appear in court. Ms. Lucky noted that the legislation is long because the various deadlines are located in the [corresponding] statute. This legislation consolidates those deadlines in this statute and references the individual statutes to AS 12.25.175-12.25.230. REPRESENTATIVE HOLMES recalled that the sponsor statement relates the goal of allowing more fines to be paid through the courts' online e-payment system. However, the language in the legislation refers to mailing or personally delivering the fines to the clerk of the court. She asked whether the language in HB 386 would allow payment online. MS. LUCKY offered her understanding that since the language to which Representative Holmes referred to is exists, it would allow fines to be paid online. However, she suggested that perhaps DPS staff could answer as she isn't familiar with the process of payment. 1:14:58 PM KATHERINE PETERSON, Lieutenant, Alaska State Troopers, Support Services, Department of Public Safety, in response to Representative Holmes, answered that citizens are already allowed to pay fines online under the existing statutory language that HB 386 uses. She added that the language of HB 386 allows the electronic transfer of information to the courts in a more timely fashion. The aforementioned allows payment online in a quicker and easier fashion. Currently, even if a court is set up to allow online payments, there is delay because the court hasn't received the citation or entered the citation into its system. REPRESENTATIVE HOLMES surmised then that the language she referenced is used in statute and should allow online e-payments without amending HB 386. LIEUTENANT PETERSON confirmed that to be correct. REPRESENTATIVE GATTO, referring to the language on page 7, asked how the language "shall accept" the citation would be enforced. 1:17:05 PM DAVID BROWER, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), noted that he helped draft HB 386. He explained that he didn't believe that the proposed language change would matter because the same individuals who won't accept the citation can't be forced to sign the citation. He said he thought the language would streamline the process as the [intent] of the legislation is to make things occur quicker without signing. The language, he explained further, would eliminate the necessity of having certain offenses for which one has to sign and certain offenses for which one doesn't have to sign. He noted that in another section the language may allow the person [refusing the citation] to be arrested. REPRESENTATIVE GATTO surmised then that the final authority is with the arresting officer who serves the citation. He said he wasn't clear that the language of HB 386 says that those who refuse the citation can be arrested. MR. BROWER said that's already in Title 12. There are certain offenses for which an officer doesn't have the authority to arrest unless the individual refuses to identify himself/herself or (indisc.). In further response to Representative Gatto, Mr. Brower pointed out that if an officer is going to issue a citation the officer has to have probable cause to believe the offense occurred, which is the same with a driving under the influence (DUI) charge. The officer, in a situation in which a potential DUI offender refused the field sobriety tests, would have to have enough articulable reasons to probable cause to arrest without the field sobriety tests. 1:21:08 PM REPRESENTATIVE HOLMES inquired as to the reasoning for replacing the deleted language on page 6, lines 10-11, with "reasonably  believes". MR. BROWER answered that the language change doesn't have any practical difference. He opined that the deleted language, "has reasonable and probable cause to believe", is redundant. Probable cause is the language used when an officer makes a determination to arrest someone for a particular crime; the elements of the crime have to be met. In this case, [the elements of the crime] are whether the individual is dangerous or has committed a particular crime and there is already probable cause for that crime. He said that the primary concern of the officer at the time is whether the individual is a danger to himself/herself or others. REPRESENTATIVE GRUENBERG pointed out that the language on page 3, lines 13-14, which is new language, is essentially the same as the language on page 3, lines 6-7. He asked whether a peace officer with probable cause who boards a boat has the right to search without a warrant for things in plain view. MR. BROWER suggested that if the items are in plain view, then the officer isn't searching. REPRESENTATIVE GRUENBERG clarified then whether in such a situation the office could seize items without a warrant. MR. BROWER offered his belief that if the items are contraband, the officer already has the right to seize the items. He clarified that although the section has been repealed and reenacted, the officer still has to have probable cause of a violation prior to boarding the boat. The aforementioned, he pointed out, isn't new. Certainly, if the officer is aboard the boat and sees contraband in plain sight, the officer would be able to seize it. REPRESENTATIVE GRUENBERG related his understanding that per Section 8, the officer will be able to board the craft simply because the officer has probable cause to believe the violation has occurred. He related his assumption that some of those violations wouldn't necessarily have given the officer probable cause to board the watercraft. Representative Gruenberg expressed concern that the officer would be able to board the watercraft and then things that wouldn't have otherwise been in plain view would be in plain view and could be seized without a search warrant. REPRESENTATIVE GRUENBERG asked if under the current law and the proposed law whether an officer would be able to seize things that would be in view once the officer can legally board the vessel. Therefore, would that allow the officer, under the plain view doctrine, to seize items he/she couldn't have otherwise seized without a warrant, he asked. MR. BROWER offered his understanding that Section 8 doesn't change existing law. MS. LUCKY surmised that Representative Gruenberg's question is whether, under current law, officers can board and seize. REPRESENTATIVE GRUENBERG expressed concern that Section 8 would give the officer a legal reason to board where none existed before and without reference to probable cause. He offered to obtain information on this matter from Legislative Legal Services. 1:27:57 PM REPRESENTATIVE GRUENBERG asked if the deleted language, "be in writing" in Section 14, is a requirement that's found elsewhere in HB 386. MR. BROWER remarked that he couldn't conceive of a citation that isn't in writing. REPRESENTATIVE GRUENBERG asked whether, in AS 12.25.175- 12.25.230 there is a requirement that a citation be in writing. If there isn't, then he opined that somewhere [statute] should specify that citations must be in writing. MR. BROWER remarked that a citation must contain certain things, which would necessarily be in writing. REPRESENTATIVE GRUENBERG requested that he be directed to the page and line of such a requirement. REPRESENTATIVE GRUENBERG referred to the language on page 4, line 5, which is elsewhere in the legislation. The language requires the department to deposit the citation and a copy with the court on or before the 10th working day after the citation's issuance. Representative Gruenberg expressed the desire that it wouldn't be grounds for a motion for dismissal if the aforementioned fails to be done in a timely fashion. MS. LUCKY directed Representative Gruenberg to page 9, lines 21- 22. MR. BROWER pointed out that the language on page 6, lines 30-31, specifies that "the officer shall prepare a written citation and issue it to the person". 1:31:17 PM REPRESENTATIVE GATTO pointed out that on page 6, lines 10-11, the language "has reasonable and probable cause to believe" has been replaced with "reasonably believes". However, throughout the legislation the language "probable cause" is used. He questioned whether the language should be consistent throughout. MR. BROWER explained that in any crime probable cause means that the officer has probable cause to believe that every element has occurred. Therefore, the language "probable cause" didn't seem to fit the provision that addresses a situation in which the officer believes the person is dangerous because there are no elements. REPRESENTATIVE HERRON, returning to the discussion of Section 14 and the deletion of the language "be in writing", related that he reviewed the statute reference to AS 12.25.175-12.25.230 and surmised that "written citation" means the same as "be in writing". MR. BROWER replied yes. REPRESENTATIVE GRUENBERG opined that in Section 24 the language ", as repealed and reenacted by sec. 26, ch. 28, SLA 2000, and by sec. 41, ch. 12, SLA 2006," could be deleted. He suggested that such technical language could be deleted throughout the legislation. MS. LUCKY informed the committee that such language is found in Sections 8 and 24. She then explained that the language is part of the Boating Safety Act, which will be repealed and is why there are two duplicative sections. Therefore, the Session Laws of Alaska (SLA) must be edited because when sunsets occur the previous statute takes the place of the new statute. In further explanation, Ms. Lucky pointed out that Sections 8 and 24 have different effective dates because they're conditional upon the eventual sunset of the Boating Safety Act. If the Boating Safety Act never sunsets, Sections 8 and 24 will never come into play. 1:35:15 PM REPRESENTATIVE GRUENBERG, referring to Section 21 on page 5, expressed his desire that the citation form should be required to be done by regulation under the Administrative Procedure Act (APA). However, the language on page 5, line 30, uses the language "may" rather than "shall". Without such a change, the commissioner could simply decide to adopt standards and not do it through regulation. He explained that the aforementioned change would clarify that the form of the regulations must go through the regular notice and public comment procedure for adoption of regulations under APA. MR. BROWER noted his agreement with Representative Gruenberg, but added that he had no doubt that the DPS commissioner would adopt regulations, which would be pursuant to AS 44.62. Since citations affect the general public it will have to be a regulation. CHAIR RAMRAS surmised this had to do with migrating to an electronic citation form. He inquired as to Lieutenant Dial's thoughts regarding whether the language on page 5, line 30, should be "may" or "shall". 1:37:26 PM RODNEY DIAL, Lieutenant/Deputy Commander, A Detachment, Division of Alaska State Troopers, Department of Public Safety, related that at this time the department would prefer "may". However, he said that the department wouldn't oppose changing the language to "shall" because he believes the department would adopt regulations anyway. REPRESENTATIVE GRUENBERG opined that it's extremely important to provide the opportunity for public comment on the form of the regulations. LIEUTENANT DIAL responded that he didn't see any reason why the department wouldn't accept that proposed change. CHAIR RAMRAS interjected that he prefers "may". 1:38:25 PM REPRESENTATIVE HERRON asked if there is any other provision, beyond that in Section 22, that replaces the language "has reasonable and probable cause to believe" with "reasonably  believes". MR. BROWER said that he would have to research that issue further, but noted that something similar is in Title 47 for mental commitments. REPRESENTATIVE HERRON expressed concern and opined that he's not convinced that [the proposed language] is the appropriate approach. REPRESENTATIVE GATTO, returning to the language on page 5, line 30, asked if the DPS commissioner, as a matter of course, regularly adopts regulations under AS 44.62. If not, is there an alternative, he asked. MR. BROWER informed the committee that any commissioner, commission, or board that adopts regulations does so under Title 44. He then pointed out that Section 21(b) says "The commissioner of public safety shall provide or prescribe citation forms for use by peace officers and other persons who are authorized by law to issue citations." Currently, the things required to be included in a citation are in statute in court rule and DPS currently has a uniform citation that it uses and is used by some other police agencies in the state. Mr. Brower said that at this point he didn't know whether the commissioner of DPS has adopted regulations regarding citations, but reiterated that any regulations are adopted under AS 44.62. REPRESENTATIVE GATTO asked if using "shall" would be a hindrance such that there may be regulations that ought to be established outside of AS 44.62. MR. BROWER pointed out that Section 48 amends AS 44.41.020 such that DPS "shall establish by regulation standardized forms for citations ..." while under Section 21 similar language uses the term "may". REPRESENTATIVE GRUENBERG related his understanding that Section 21 only relates to the forms of the citation. He asked if that's correct. MS. LUCKY answered that she interpreted it that way as well. REPRESENTATIVE GRUENBERG surmised, then, that Section 21(c) might be read in conflict with Section 48. Since it's the intent to require regulations under Section 48, he opined that the "may" language on page 5, line 30, should be changed to "shall" so as to avoid any conflict. MS. LUCKY stated that she supported such a change. CHAIR RAMRAS, upon determining no one else wished to testify, closed public testimony. 1:44:30 PM CHAIR RAMRAS made a motion to adopt Amendment 1, which read [original punctuation provided]: Page 2, lines 14, following "section.": DELETE "The citation is considered a summons for a failure to obey a citation under AS 12.25.230, and the court may issue a bench warrant." Page 2 line 29, through page 3, line 2: DELETE ALL MATERIAL AND INSERT: "* Sec. 6. AS 04.21.065(j) is repealed and reenacted to read: (j) A person cited under this section is guilty of failure to obey a citation under AS 12.25.230 if the person fails to pay the bail amount established under (g) of this section or to appear in court as required." Page 10, following line 13 INSERT a new bill section to read: "* Sec. 32. AS 16.05.165 (a) is amended to read: (a) When a peace officer stops or contacts a person concerning a violation of this title except AS 16.51 and AS 16.52 or of a regulation adopted under this title except AS 16.51 and AS 16.52 that is a misdemeanor, the peace officer may, in the officer's discretion, issue a citation to the person as provided in AS 12.25.175 - 12.25.230 [AS 12.25.180] . RENUMBER following sections accordingly Page 10, line 26 following "required." DELETE "The citation is considered a summons for failure to obey a citation under AS 12.25.230, and the court may issue a bench warrant." REPRESENTATIVE HOLMES objected for the purpose of discussion. MS. LUCKY explained that Amendment 1 is basically clean up. Amendment 1 inserts citations that were omitted and omits the language "The citation is considered a summons for a failure to obey a citation under AS 12.25.230, and the court may issue a bench warrant." He requested that Mr. Brower speak to the aforementioned language being deleted by Amendment 1. 1:45:30 PM MR. BROWER explained that numerous existing statutes indicate that an individual who was cited into court to either pay a fine or attend court and did neither, the citation would be considered a summons for a misdemeanor. However, he opined that the language was meaningless. If the original citation was for a violation, it couldn't revert to a misdemeanor. It's clear that failure to obey a citation is a violation of AS 12.25.230, he stated. MS. LUCKY, in response to Representative Gruenberg, clarified that the document [entitled "Amendments to HB 386 (26-LS1525\A)] merely describes Amendment 1. REPRESENTATIVE HOLMES withdrew her objection. There being no further objection, Amendment 1 was adopted. 1:47:00 PM REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2, as follows: Page 5, line 30; Delete "may" Insert "shall" REPRESENTATIVE DAHLSTROM objected for discussion. CHAIR RAMRAS then announced that without objection Amendment 2 was adopted. 1:47:30 PM REPRESENTATIVE DAHLSTROM moved to report HB 386, as amended, out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE HERRON objected, and reiterated concern that the change on page 6, lines 10-11, could be utilized elsewhere. He then removed his objection. There being no further objection, CSHB 386(JUD) was reported from the House Judiciary Standing Committee.