CRIMINAL LAW LEGISLATIVE UPDATE – DECEMBER 4, 2013

Criminal LawThe Alabama Criminal Law Legislative Update Includes The Following Pre-filed House Bills

 

HOUSE BILL 27 – CHANGING DEFINITION OF BURGLARY SECOND DEGREE

Pre-filed on 10/18/13 by Rep. Wood

Under the existing statute, a person commits burglary in the second degree if the person unlawfully enters a lawfully occupied dwelling-house with intent to commit a theft or a felony therein.  Under the proposed law, the requirement that the dwelling-house be “lawfully occupied” would be removed, thus making the burglary of a “habitable dwelling” burglary in the second degree. The way the statute would read if the bill is passed would be to include, “a lawfully occupied or unoccupied habitable dwelling-house” as qualifying under Burglary Second Degree.

Comment: This does not mesh well with the elements found in First Degree Burglary, which is the burglary of a “dwelling.” Could this obliterate the difference in the two crimes given the definition of “dwelling” in Ala. Code § 13A-7-1 which, according to the commentary, does not require, “… that a person actually be within the structure or place at the time of the alleged offense in order to qualify as a “dwelling,”””

 

HOUSE BILL 29 – SENTENCING ENHANCEMENT / MANDATORY MINIMUMS FOR WEARING BODY ARMOR OR BULLETPROOF VEST WHILE COMMITTING WHILE COMMITTING FELONY
Pre-filed on 10/18/13 by Rep. Wood

Under existing law, Ala. Code § 13A-5-6, a defendant convicted of felony in which a firearm or deadly weapon was used or a defendant convicted of a felony criminal sex offense is required to be sentenced with mandatory minimums (20 years for Class A / 10 years for Class B or C).  Under this proposed law, the same mandatory minimums would apply where a defendant is convicted of a felony while wearing a bulletproof vest, body armor, or any other ballistic protection at the time of commission of the crime.

Comment: The problem here is that the statute as presently written requires that the firearm be, “… used or attempted to be used” in the commission of the felony. See Snowden v. State, 842 So.2d 24 (Ala.Crim.App.2002) .  Under the bill as currently written, it is possible that ANY felony during which body armor or a bulletproof vest is worn, whether or not it is remotely connected to the crime or facilitates the crime could result in the 20 or 10 year minimum . 

 

HOUSE BILL 33 – ALLOWS FOR WARRANTLESS ARRESTS OF PERSON “BELIEVED” TO BE TRESPASSING ON SCHOOL PROPERTY
Pre-Filed 10/18/2013 by Rep. Poole

This bill adds a provision to Alabama Code § 15-10-3 that would allow a law enforcement officer to conduct a warrantless arrest of a person who they have reasonable cause to believe is trespassing on the premises of an educational institution.  The bill also adds to the already confounding definition of the word “building” in Ala. Code § 13A-7-1, so as to include, “any structure used for any purpose by an educational institution, as defined in Section 15-10-3.”

 

HOUSE BILL 47 – GRANTS JUDGE AUTHORITY TO ISSUE WARRANT FOR PLACEMENT, REMOVAL AND MAINTENANCE OF A TRACKING DEVICE, AND LIMITS PUBLIC USE OF TRACKING DEVICES
Pre-filed 11/18/2013 by Rep. England

Under this proposed law, any judge authorized to issue a search warrant under the current Alabama Rules of Criminal Procedure would be authorized to issue a warrant for the “installation, removal, maintenance, use, or monitoring of a tracking device. The bill limits the time frame for the use of the tracking device to 45 days, unless the judge extends for successive 45 periods. The bill calls for the warrant to include authorization for access into the object to be tracked or into any building or structure where the object is located. The bill does state that the access is for the limited purpose of installing, retrieving or maintaining the tracking device.

The bill also establishes the crime of unlawfully installing a tracking device where the procedures in the bill are not followed. The procedure is limited to use by law enforcement, district attorneys or the attorney general. Violation of the law is a Class A Misdemeanor. There are two exceptions to the law: 1) a business entity may install and use a tracking device on their own vehicles or equipment, whether leased or owned, and 2) an individual may install and use a tracking device on a vehicle, equipment, or device that the individual owns, leases, or operates.

 

HOUSE BILL 54 – MAKES IT A CLASS C FELONY TO INTERFERE OR DISRUPT PUBLIC SAFETY COMMUNICATIONS
Pre-filed 11/18/2013 by Rep. Wood

This bill is all encompassing, and makes it a Class C felony to interfere with any public safety communication, damage or tamper with any public safety communication equipment or otherwise interferes with a public safety telecommunication broadcast or transmission. Additionally, it makes it unlawful to intercept and un-encrypt any encrypted public safety communication. 13 A violation would be a Class C felony.

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