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.