00 CS FOR HOUSE BILL NO. 132(2d RLS)(efd am) 01 "An Act relating to the possession, distribution, importation, and transportation of 02 alcohol in a local option area; requiring liquor license applicants to submit fingerprints 03 for the purpose of conducting a criminal history background check, and relating to the 04 use of criminal justice information by the Alcoholic Beverage Control Board; relating to 05 the offenses of operating a motor vehicle, aircraft, or watercraft while intoxicated and 06 refusal to take a breath test; relating to implied consent to take a chemical test; relating 07 to presumptions arising from the amount of alcohol in a person's breath or blood; and 08 providing for an effective date." 09 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10  * Section 1. AS 04.11.010(c) is amended to read: 11 (c) In a criminal prosecution for possession of alcoholic beverages for sale in 12 violation of (a) of this section, the fact that a person possessed more than six [12] liters 01 of distilled spirits, 24 liters or more of wine, or 12 gallons or more of malt beverages 02 in an area where the sale of alcoholic beverages is restricted or prohibited under 03 AS 04.11.491 creates a presumption that the person possessed the alcoholic beverages 04 for sale. 05  * Sec. 2. AS 04.11.150(g) is amended to read: 06 (g) If a shipment is to an area that has restricted the sale of alcoholic 07 beverages under AS 04.11.491(a)(1), (2), or (3) or (b)(1) or (2), a package store 08 licensee, agent, or employee may not ship to a purchaser more than six [12] liters of 09 distilled spirits, 24 liters or more of wine, or 12 gallons or more of malt beverages in a 10 calendar month. 11  * Sec. 3. AS 04.11 is amended by adding a new section to read: 12 Sec. 04.11.295. Criminal justice information and records. (a) An 13 applicant for the issuance or transfer of a license under this title shall submit to the 14 board, with the application, the applicant's fingerprints and the fees required by the 15 Department of Public Safety for criminal justice information and a national criminal 16 history record check. The board may require an applicant for renewal of a license 17 under this title to submit fingerprints and pay fees as required by this subsection. The 18 board shall submit the fingerprints to the Department of Public Safety to obtain a 19 report of criminal justice information under AS 12.62 and a national criminal history 20 record check. The Department of Public Safety may submit the fingerprints to the 21 Federal Bureau of Investigation for a national criminal history record check. The 22 board shall use the information obtained under this section in its determination of an 23 applicant's qualification for issuance, transfer, or renewal of a license. 24 (b) In this section, 25 (1) "applicant" means all individuals whose names and addresses are 26 required to be provided with an application for a new license under AS 04.11.260; 27 (2) "criminal justice information" has the meaning given in 28 AS 12.62.900. 29  * Sec. 4. AS 04.11.491(f) is amended to read: 30 (f) If a [A] municipality or established village [THAT] has adopted a local 31 option under (a)(1), (2), or (3) or (b)(1) or (2) of this section, the state, municipality,  01 or established village may designate and operate a site for the delivery of alcoholic 02 beverages to individuals in the area or a site for a person to bring alcoholic beverages 03 if the alcoholic beverages are imported into the area. This subsection does not apply 04 to the delivery or importation of 05 (1) one liter or less of distilled spirits, two liters or less of wine, or one 06 gallon or less of malt beverages; or 07 (2) alcoholic beverages to a premises licensed under (a)(2) - (3) or 08 (b)(2) of this section. 09  * Sec. 5. AS 04.11.491(f) is repealed and reenacted to read: 10 (f) A municipality or established village that has adopted a local option under 11 (a)(1), (2), or (3) or (b)(1) or (2) of this section may designate a site for the delivery of 12 alcoholic beverages to individuals in the area or a site for a person to bring alcoholic 13 beverages if the alcoholic beverages are imported into the area. This subsection does 14 not apply to the delivery or importation of 15 (1) one liter or less of distilled spirits, two liters or less of wine, or one 16 gallon or less of malt beverages; or 17 (2) alcoholic beverages to a premises licensed under (a)(2) - (3) or 18 (b)(2) of this section. 19  * Sec. 6. AS 04.11 is amended by adding a new section to read: 20 Sec. 04.11.494. Operation of delivery sites. (a) If a site has been designated 21 under AS 04.11.491(f), except as permitted under AS 04.11.491(f)(1) and (2), 22 (1) alcoholic beverages brought, sent, or transported to an area by a 23 package store or by a person must be sent shipping prepaid and must be addressed to 24 the delivery site; 25 (2) a person or common carrier with possession of alcoholic beverages, 26 upon importation into the area, including alcoholic beverages transported as checked 27 baggage accompanying a traveler, must deliver the alcoholic beverages to the delivery 28 site upon arrival if the delivery site is open or must keep the alcoholic beverages in 29 secure storage until the earliest time the delivery site is next open; the delivery must be 30 made without opening the package containing the alcoholic beverages; alcoholic 31 beverages transported as checked baggage accompanying a traveler may not be 01 released to the traveler before being delivered to the delivery site; 02 (3) a person who cannot lawfully receive alcoholic beverages from the 03 delivery site may not solicit another to bring, send, or transport alcoholic beverages to 04 an area for the solicitor's use; 05 (4) a person may not bring, send, or transport alcoholic beverages to an 06 area upon the solicitation of or with the understanding that the alcoholic beverages are 07 for the use of another person who cannot lawfully receive alcoholic beverages from 08 the delivery site; and 09 (5) alcoholic beverages may not be released from the delivery site 10 except by the operator of the site or an authorized employee or agent of the operator. 11 (b) The operator of a site designated under AS 04.11.491(f) and employees 12 and agents of the operator 13 (1) may not release alcoholic beverages if the package holding the 14 alcoholic beverages is not clearly labeled with the name of the intended recipient or if 15 the package displays the names of more than one recipient; 16 (2) may not release alcoholic beverages without first determining the 17 identity of the recipient by checking a government-issued identification card 18 containing the person's photograph or establishing another means of positive 19 identification; 20 (3) may not release alcoholic beverages if the recipient is different than 21 the person whose name appears on the container as the recipient; 22 (4) may not release alcoholic beverages if the amount released to a 23 recipient in one calendar month is more than a package store is permitted to ship to a 24 purchaser in one calendar month under AS 04.11.150(g) or more than the amount a 25 person may import in one calendar month under a municipal ordinance enacted under 26 AS 04.21.010(a), whichever is less; 27 (5) may not release alcoholic beverages if the alcoholic beverage or its 28 container violates AS 04.16.100, 04.16.110 or a municipal ordinance enacted under 29 AS 04.21.010(a); 30 (6) may not open packages delivered to the site to inspect the contents 31 unless permitted to do so by a search warrant or unless the recipient gives written 01 consent to the opening and inspection; 02 (7) unless the shipper is a licensed package store and the shipping 03 container complies with AS 04.16.125, may not release alcoholic beverages until the 04 alcoholic beverages have been inspected to determine if release would be lawful under 05 this subsection; 06 (8) may not release alcoholic beverages until the recipient has paid all 07 applicable taxes and administrative fees authorized under this section; 08 (9) may not release alcoholic beverages to a recipient and may not 09 employ or otherwise use a person in the operation of the delivery site to handle or 10 secure alcoholic beverages if the person 11 (A) is under the influence of an alcoholic beverage, controlled 12 substance, or inhalant; 13 (B) is under a court order or a condition of bail, probation, or 14 parole that prohibits the person from consuming or possessing alcoholic 15 beverages; 16 (C) is under 21 years of age; or 17 (D) is disqualified due to the person's criminal record under (e) 18 of this section; 19 (10) may return alcoholic beverages to the sender or to the point of 20 shipment at the expense of the recipient if alcoholic beverages cannot be lawfully 21 released under this subsection; 22 (11) may destroy alcoholic beverages 23 (A) that cannot be lawfully released under this subsection if the 24 recipient elects not to pay for the return of the alcoholic beverages under (10) 25 of this subsection; or 26 (B) that have not been released within the time period 27 established by regulations adopted under this section; 28 (12) may establish a voluntary and confidential registration system so 29 as to expedite processing by allowing recipients to be authorized in advance to receive 30 alcoholic beverages; 31 (13) shall immediately report violations of a provision of this title or a 01 regulation adopted under this title to the Alaska state troopers and, if the site is within 02 a municipality, to the municipal police agency; 03 (14) shall maintain records concerning recipients and alcoholic 04 beverages delivered to and released by the delivery site in a manner and for a period of 05 time established under regulations adopted under this section, and shall make the 06 records available for inspection by the Alaska state troopers, a municipal police 07 agency if the site is within a municipality, and the board at reasonable times; and 08 (15) may charge reasonable fees to recipients for registration or for the 09 release of alcoholic beverages under regulations adopted under this section. 10 (c) Except as provided in (b)(14) of this section, records of recipients and 11 alcoholic beverages delivered to and released by the site are confidential and not 12 subject to disclosure except as required by a court order. 13 (d) The board shall adopt regulations to implement this section, including 14 hours of operation, requirements for security and recordkeeping, procedures for 15 delivery, release, processing, and destruction of alcoholic beverages, and 16 administrative fees. 17 (e) A person is disqualified as described under (b)(9) of this section due to the 18 person's criminal record if less than 19 (1) two years has elapsed from the person's unconditional discharge 20 due to a conviction or adjudication as a delinquent for any of the following offenses or 21 a law or ordinance from another jurisdiction with similar elements: 22 (A) driving while intoxicated under AS 28.35.030 or refusal to 23 submit to a chemical test under AS 28.35.032; or 24 (B) a crime involving domestic violence as that term is defined 25 under AS 18.66.990 or violating a protective order under AS 11.56.740; 26 (2) five years has elapsed from the person's unconditional discharge 27 due to a conviction or adjudication as a delinquent for any of the following offenses or 28 a law or ordinance from another jurisdiction with similar elements: 29 (A) a felony violation or a felony attempt to commit a violation 30 of AS 11.41; or 31 (B) a misdemeanor violation of or a misdemeanor attempt to 01 violate a provision in this title; or 02 (3) 10 years has elapsed from the person's unconditional discharge due 03 to a conviction or adjudication as a delinquent for a felony violation or a felony 04 attempt to violate a provision of this title or a law or ordinance from another 05 jurisdiction with similar elements. 06 (f) Operation of a delivery site under this section constitutes a criminal justice 07 activity. In this subsection, "criminal justice activity" has the meaning given in 08 AS 12.62.900. 09 (g) In this section, 10 (1) "area" means a municipality or established village that has adopted 11 a local option under AS 04.11.491(a)(1), (2) or (3) or (b)(1) or (2); 12 (2) "bring" has the meaning given in AS 04.11.499; 13 (3) "controlled substance" has the meaning given in AS 11.71.900; 14 (4) "import" means to send, bring, or transport; 15 (5) "inhalant" has the meaning given to "hazardous volatile material or 16 substance" in AS 47.37.270; 17 (6) "recipient" means a person entitled to receive or attempting to 18 receive alcoholic beverages from a delivery site; 19 (7) "send" has the meaning given in AS 04.11.499; 20 (8) "transport" has the meaning given in AS 04.11.499; 21 (9) "unconditional discharge" has the meaning given in AS 12.55.185. 22  * Sec. 7. AS 04.11.499 is amended to read: 23 Sec. 04.11.499. Prohibition of importation after election. If a majority of 24 the voters vote to prohibit the importation of alcoholic beverages under 25 AS 04.11.491(a)(4) or (5) or (b)(3) or (4), a person, beginning on the first day of the 26 month following certification of the results of the election, may not knowingly send, 27 transport, or bring an alcoholic beverage into the municipality or established village, 28 unless the alcoholic beverage is sacramental wine to be used for bona fide religious 29 purposes based on tenets or teachings of a church or religious body, is limited in 30 quantity to the amount necessary for religious purposes, and is dispensed only for 31 religious purposes by a person authorized by the church or religious body to dispense 01 the sacramental wine. In this section,  02 (1) "bring" means to carry or convey or to attempt or solicit to  03 carry or convey;  04 (2) "send" means to cause to be taken or distributed or to attempt  05 or solicit to cause to be taken or distributed, and includes use of the United States  06 Post Office;  07 (3) "transport" means to ship by any method, and includes  08 delivering or transferring or attempting or soliciting to deliver or transfer an  09 alcoholic beverage to be shipped to, delivered to, or left or held for pick up by  10 any person. 11  * Sec. 8. AS 04.16.125(c) is amended to read: 12 (c) In this section, 13 (1) "common carrier" means a motor vehicle, watercraft, aircraft, or 14 railroad car available for public hire to transport freight or passengers;  15 (2) "transport" has the meaning given in AS 04.11.499. 16  * Sec. 9. AS 04.16.200(e) is amended to read: 17 (e) A person who sends, transports, or brings alcoholic beverages into a 18 municipality or established village in violation of AS 04.11.499 is, upon conviction, 19 (1) guilty of a class A misdemeanor if the quantity of alcoholic  20 beverages [IMPORTED] is less than six [12] liters of distilled spirits, 24 liters of 21 wine, or 12 gallons of malt beverages; or 22 (2) guilty of a class C felony if the quantity of alcoholic beverages 23 [IMPORTED] is six [12] liters or more of distilled spirits, 24 liters or more of wine, or 24 12 gallons or more of malt beverages. 25  * Sec. 10. AS 28.35.030(a) is amended to read: 26 (a) A person commits the crime of driving while intoxicated if the person 27 operates or drives a motor vehicle or operates an aircraft or a watercraft 28 (1) while under the influence of intoxicating liquor, or any controlled 29 substance; 30 (2) when, as determined by a chemical test taken within four hours 31 after the alleged offense was committed, there is 0.08 [0.10] percent or more by 01 weight of alcohol in the person's blood or 80 [100] milligrams or more of alcohol per 02 100 milliliters of blood, or when there is 0.08 [0.10] grams or more of alcohol per 210 03 liters of the person's breath; or 04 (3) while the person is under the combined influence of intoxicating 05 liquor and a controlled substance. 06  * Sec. 11. AS 28.35.030(n) is amended to read: 07 (n) A person is guilty of a class C felony if the person is convicted under (a)  08 of this section [OF DRIVING WHILE INTOXICATED] and has been previously 09 convicted two or more times since January 1, 1996, and within the 10 [FIVE] years 10 preceding the date of the present offense. For purposes of determining minimum 11 sentences based on previous convictions, the provisions of (o)(4) of this section apply. 12 Upon conviction, the court 13 (1) shall impose a fine of not less than $5,000 and a minimum sentence 14 of imprisonment of not less than 15 (A) 120 days if the person has been previously convicted twice; 16 (B) 240 days if the person has been previously convicted three 17 times; 18 (C) 360 days if the person has been previously convicted four 19 or more times; 20 (2) may not 21 (A) suspend execution of sentence or grant probation except on 22 condition that the person serve the minimum imprisonment under (1) of this 23 subsection; or 24 (B) suspend imposition of sentence; 25 (3) shall revoke the person's driver's license, privilege to drive, or 26 privilege to obtain a license under AS 28.15.181(c); 27 (4) may order as a condition of probation or parole that the person take 28 a drug or combination of drugs, intended to prevent the consumption of an alcoholic 29 beverage; a condition of probation imposed under this paragraph is in addition to any 30 other condition authorized under another provision of law; and 31 (5) may also order forfeiture under AS 28.35.036 of the vehicle or 01 aircraft used in the commission of the offense, subject to remission under 02 AS 28.35.037.  03  * Sec. 12. AS 28.35.030(o) is amended to read: 04 (o) In this section, 05 (1) [REPEALED] 06 (2) "operate an aircraft" means to [USE,] navigate, pilot, or taxi an 07 aircraft in the airspace over this state, or upon the land or water inside this state; 08 (3) "operate a watercraft" means to navigate [OR USE] a vessel used 09 or capable of being used as a means of transportation on water for recreational or 10 commercial purposes on all waters, fresh or salt, inland or coastal, inside the territorial 11 limits or under the jurisdiction of the state; 12 (4) "previously convicted" means having been convicted in this or 13 another jurisdiction, [WITHIN 10 YEARS PRECEDING THE DATE OF THE 14 PRESENT OFFENSE,] of any of the following offenses; however, convictions for any 15 of these offenses, if arising out of a single transaction and a single arrest, are 16 considered one previous conviction: 17 (A) operating a motor vehicle, aircraft, or watercraft while 18 intoxicated, in violation of this section or in violation of another law or 19 ordinance with similar elements, except that the other law or ordinance may 20 provide for a lower level of alcohol in the person's blood or breath than 21 imposed under (a)(2) of this section; 22 (B) refusal to submit to a chemical test in violation of 23 AS 28.35.032 or in violation of another law or ordinance with similar 24 elements; or 25 (C) operating a commercial motor vehicle while intoxicated in 26 violation of AS 28.33.030 or in violation of another law or ordinance with 27 similar elements, except that the other law or ordinance may provide for a 28 lower level of alcohol in the person's blood or breath than imposed under 29 AS 28.33.030(a)(2). 30  * Sec. 13. AS 28.35.031 is amended by adding a new subsection to read: 31 (h) Nothing in this section shall be construed to restrict searches or seizures 01 under a warrant issued by a judicial officer, in addition to a test permitted under this 02 section. 03 * Sec. 14. AS 28.35.032(p) is amended to read: 04 (p) A person is guilty of a class C felony if the person is convicted under this 05 section and has been previously convicted two or more times since January 1, 1996,  06 and within the 10 [FIVE] years preceding the date of the present offense. For 07 purposes of determining minimum sentences based on previous convictions, the 08 provisions of AS 28.35.030(o)(4) apply. Upon conviction, 09 (1) the court shall impose a fine of not less than $5,000 and a 10 minimum sentence of imprisonment of not less than 11 (A) 120 days if the person has been previously convicted twice; 12 (B) 240 days if the person has been previously convicted three 13 times; 14 (C) 360 days if the person has been previously convicted four 15 or more times; 16 (2) the court may not 17 (A) suspend execution of the sentence required by (1) of this 18 subsection or grant probation, except on condition that the person serve the 19 minimum imprisonment under (1) of this subsection; or 20 (B) suspend imposition of sentence; 21 (3) the court shall revoke the person's driver's license, privilege to 22 drive, or privilege to obtain a license under AS 28.15.181(c); 23 (4) the court may order as a condition of probation or parole that the 24 person take a drug, or combination of drugs, intended to prevent consumption of an 25 alcoholic beverage; a condition of probation imposed under this paragraph is in 26 addition to any other condition authorized under another provision of law; 27 (5) the sentence imposed by the court under this subsection shall run 28 consecutively with any other sentence of imprisonment imposed on the person; and 29 (6) the court may also order forfeiture under AS 28.35.036, of the 30 vehicle or aircraft used in the commission of the offense, subject to remission under 31 AS 28.35.037. 01  * Sec. 15. AS 28.35.033(a) is amended to read: 02 (a) Upon the trial of a civil or criminal action or proceeding arising out of acts 03 alleged to have been committed by a person while operating or driving a motor vehicle 04 or operating an aircraft or a watercraft while intoxicated, the amount of alcohol in the 05 person's blood or breath at the time alleged shall give rise to the following 06 presumptions: 07 (1) If there was 0.04 [0.05] percent or less by weight of alcohol in the 08 person's blood, or 40 [50] milligrams or less of alcohol per 100 milliliters of the 09 person's blood, or 0.04 [0.05] grams or less of alcohol per 210 liters of the person's 10 breath, it shall be presumed that the person was not under the influence of intoxicating 11 liquor. 12 (2) If there was in excess of 0.04 [0.05] percent but less than 0.08 13 [0.10] percent by weight of alcohol in the person's blood, or in excess of 40 [50] but 14 less than 80 [100] milligrams of alcohol per 100 milliliters of the person's blood, or in 15 excess of 0.04 [0.05] grams but less than 0.08 [0.10] grams of alcohol per 210 liters of 16 the person's breath, that fact does not give rise to any presumption that the person was 17 or was not under the influence of intoxicating liquor, but that fact may be considered 18 with other competent evidence in determining whether the person was under the 19 influence of intoxicating liquor. 20 (3) [REPEALED 21 (4)] If there was 0.08 [0.10] percent or more by weight of alcohol in 22 the person's blood, or 80 [100] milligrams or more of alcohol per 100 milliliters of the 23 person's blood, or 0.08 [0.10] grams or more of alcohol per 210 liters of the person's 24 breath, it shall be presumed that the person was under the influence of intoxicating 25 liquor. 26  * Sec. 16. AS 04.11.494, enacted by sec. 6 of this Act, is repealed July 1, 2004. 27  * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to 28 read: 29 TRANSITION: PENDING APPLICATIONS. Notwithstanding the requirements of 30 AS 04.11.295, enacted by sec. 3 of this Act, the Alcoholic Beverage Control Board may 31 process an application for issuance or transfer of a license under AS 04 without a national 01 criminal history record check from the Federal Bureau of Investigation if that application was 02 pending with the board on the effective date of this Act. 03  * Sec. 18. The uncodified law of the State of Alaska is amended by adding a new section to 04 read: 05 INTERVENING AMENDMENTS. It is the intent of the legislature that intervening 06 amendments to AS 04.11.491(f) are not to be carried forward on the effective date of sec. 5 of 07 this Act. 08  * Sec. 19. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 APPLICABILITY. This Act applies to offenses committed on or after the effective 11 date of this Act, except that references to previous convictions include convictions occurring 12 before, on, or after the effective date of this Act. 13  * Sec. 20. Section 5 of this Act takes effect July 1, 2004. 14  * Sec. 21. Sections 10 - 15 of this Act take effect July 1, 2001. 15  * Sec. 22. Except as provided in secs. 20 and 21 of this Act, this Act takes effect 16 immediately under AS 01.10.070(c).