HB 259-CONFINING VEHICLE LOADS  2:42:36 PM CHAIR COGHILL reconvened the meeting and announced the consideration of HB 259. He noted the proposed committee substitute (CS) that corrects an issue that the sponsor and the Department of Law identified. 2:43:37 PM SENATOR COSTELLO moved to adopt the [Senate CS] for HB 259, version G, as the working document. CHAIR COGHILL objected for an explanation. 2:44:17 PM JORDAN SHILLING, Staff, Senator John Coghill, Alaska State Legislature, Juneau, Alaska, advised that the CS for HB 259 removes subsection (e) on page 2, line 24, of version S that came to the committee. He deferred further explanation to Diane Wendlandt with the Department of Law. 2:45:01 PM DIANE WENDLANDT, Assistant Attorney General, Criminal Division, Office of Criminal Appeals, Department of Law, Anchorage, Alaska, said the primary concern is burden shifting. Subsection (e) relies on the proof of one fact (the prior conviction) to prove another fact (criminal negligence). There isn't a close connection between the prior violation and the proof of criminal negligence because there are too many factual variables in proving criminal negligence. She noted that other statutes are illustrative. For example, if you're trying to prove the fact that a defendant knew he had an obligation to register as a sex offender, proof that he has a prior conviction is a very direct and close connection to the fact you're trying to prove. A prior conviction of what was found to be criminal negligence may have turned on the type of load, the means of securing the load, the vehicle, or the route traveled. The risk really depends on very specific facts in each case. Trying to tie the finding of criminal negligence in a prior case with a current one doesn't require any similarity between the two cases. That effectively shifts the burden of showing why the cases aren't similar to the defendant, which is generally not allowed. MS. WENDLANDT advised that not requiring similarity between the past and current event means you're essentially defining criminal negligence based strictly on propensity. The defendant was careless in the past and therefore is presumed to be careless in the current case. Evidence Rule 404(b) allows evidence of prior acts to be presented to the extent that it proves things such as the absence of mistake or knowledge. What isn't allowed is to say a person is bad or careless and that's enough to prove that they were careless of bad in the current case. CHAIR COGHILL found no questions and asked the sponsor to present the bill. 2:49:12 PM REPRESENTATIVE LOUISE STUTES, Alaska State Legislature, Juneau, Alaska, sponsor of HB 259, stated that the bill addresses a serious gap in the confined load statute that only allows a $300 traffic infraction, even if a person is seriously injured as a result of someone's negligence in securing their load. The bill also updates the statute to include all materials that escape a vehicle, with a few specific exemptions. It requires maintaining six inches of freeboard or tarping loads of sand, gravel, rock, or similar materials. This is a responsible public safety measure that will reduce fatalities, property damage, and roadway litter. CHAIR COGHILL asked Mr. Gruening to go through the sectional. 2:50:50 PM MATT GRUENING, Staff Representative Louise Stutes, Alaska State Legislature, Juneau, Alaska, presented the following sectional analysis for HB 259. Section 1 on Page 1, line 3 through Page 3, line 9: AS 28.35.251 is repealed and reenacted: Subsection (a) on Page 1, lines 4 through 7: This subsection states that a person is guilty of the crime of failure to contain or confine a load in the first degree if, with a mental state of criminal negligence, they violate (c) and as result, cause serious physical injury to another person. Criminal negligence applies to the act of the securing the load. Failure to contain or confine a load in the first degree is a class A misdemeanor. Subsection (b) on Page 1, lines 8 through 10: This subsection states that a person is guilty of the crime of failure to contain or confine a load in the second degree if, with criminal negligence, they violate (c) and as result, cause property damage of $5,000 or more to another person's property. Criminal negligence applies to the act of the securing the load. Failure to contain or confine a load in the second degree is a class B misdemeanor. Subsection (c)(1)(A)(i)(ii) and (B) on Page 1, line 11 through Page 2, line 7: This subsection specifies that a person commits the offense of failure to contain or confine a load in the third degree if the person drives or moves a motor vehicle loaded with any material on a highway unless it is secured or situated in a way that prevents it from escaping the vehicle or shifting to the extent that the vehicle's maneuverability or stability is adversely affected and the load is treated by methods approved through regulation by the Department of Public Safety that are designed to settle the load or remove loose material before it is driven on a highway. Failure to contain or confine a load in the third degree is an infraction. Subsection (c)(2) on Page 2, lines 9 through 12: This subsection specifies that a person may drive or move a motor vehicle loaded with sand, gravel, dirt, rock, or similar materials if at least 6 inches of freeboard is maintained around the perimeter of the load or a cover is used and securely fastened. Subsection (d)(1) on Page 2, lines 13 through 16: This subsection is an exemption that specifies that the provisions of this act do not apply to a vehicle that deposits sand, liquids, or other materials for the purpose of cleaning, maintaining, or improving traction on the highway. Subsection (d)(2) on Page 2, lines 17 through 18: This subsection is an exemption that specifies that the provisions of this act do not apply to commercial motor vehicles that are subject to federal motor carrier securement standards implemented through state or federal law. Subsection (d)(3) on Page 2, lines 19 through 20: This subsection is an exemption that specifies that the provisions of this act do not apply to the natural accumulation of snow, ice, mud, dirt, or similar materials. Subsection (d)(4) on Page 2, line 21: This subsection is an exemption that specifies that the provisions of this act do not apply to a vehicle that is removing snow or hauling snow after removal. Subsection (d)(5) on Page 2, lines 22 through 23: This subsection is an exemption that specifies that the provisions of this act do not apply to random litter escaping a vehicle. Litter is defined in this section as plastic wrappers, empty plastic bags, leaves, paper, or similar soft materials. "Random" modifies "litter" to clarify that a load of litter is not exempted. Subsection (e)(1) on Page 2, lines 25 through 26: This subsection specifies that failure to contain or confine a load in the first degree is a class A misdemeanor. Subsection (e)(2) on Page 2, lines 27 through 28: This subsection specifies that failure to contain or confine a load in the second degree is a class B misdemeanor. Subsection (e)(3)(A), (B), (C), and (D) on Page 2, line 29 through Page 3, line 6: This subsection specifies that failure to contain or confine a load in the third degree is an infraction punishable by a fine of not more than $300 on the first offense, $750 on the second offense, $1,500 on the third offense, and $2,500 on the fourth offense. The penalty for the first violation is consistent with current statute. Subsection (f) on Page 3, lines 7 through 8: This subsection specifies that criminal negligence in this section has the meaning given in AS 11.81.900. Section 2 on Page 3, lines 9 through 10. AS 28.35.253 is amended by adding a new subsection: This section is a conforming amendment to reflect the repeal and reenactment of AS 28.35.251 in Section 1 of the bill and the repeal of AS 28.35.255. AS 28.35.255 currently houses the penalties for violations of both AS 28.35.251 and AS 28.35.253. Violating AS 28.35.253 is currently an infraction and there is no substantive change. Section 3 on Page 3, line 11: This section repeals 28.35.255. This is a section that requires people to have anti-spray devices such as mud flaps and fenders on vehicles. 2:57:39 PM CHAIR COGHILL held HB 259 in committee for further consideration.