CSSB 279(JUD): "An Act relating to operating or driving a motor vehicle, commercial motor vehicle, aircraft, or watercraft; to classifying certain driving while intoxicated offenses as felonies; to motor vehicle forfeiture; and providing for an effective date."
00CS FOR SENATE BILL NO. 279(JUD) 01 "An Act relating to operating or driving a motor vehicle, commercial motor 02 vehicle, aircraft, or watercraft; to classifying certain driving while intoxicated 03 offenses as felonies; to motor vehicle forfeiture; and providing for an effective 04 date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 28.15.165(a) is amended to read: 07 (a) A law enforcement officer shall read a notice, and deliver a copy of it, to 08 a person operating a motor vehicle, commercial motor vehicle, or aircraft, if a 09 chemical test administered under AS 28.33.031(a) or AS 28.35.031(a) or (g) produces 10 a result described in AS 28.35.030(a)(2); a chemical test administered under 11 AS 28.33.031(a) produces a result described in AS 28.33.030(a)(2); or the person 12 refuses to submit to a chemical test authorized under AS 28.33.031(a) [AS 28.33.031] 13 or AS 28.35.031(a) or (g) [AS 28.35.032]. The notice must advise that 14 (1) the department intends to revoke the person's driver's license,
01 privilege to drive, or privilege to obtain a license, refuse to issue an original license 02 to the person, or disqualify the person; 03 (2) the person has the right to administrative review of the action taken 04 against the person's license or determination not to issue an original license; 05 (3) if the person has a driver's license or a nonresident privilege to 06 drive, the notice itself is a temporary driver's license that expires seven days after it 07 is delivered to the person, except that if the person was operating a commercial motor 08 vehicle the person will be ordered out of service for 24 hours under AS 28.33.130; 09 (4) revocation of the person's driver's license, privilege to drive, or 10 privilege to obtain a license, a determination not to issue an original license, or a 11 disqualification of the person, takes effect seven days after delivery of the notice to the 12 person unless the person, within seven days, requests an administrative review. 13 * Sec. 2. AS 28.15.165(c) is amended to read: 14 (c) Unless the person has obtained a temporary permit or stay of a 15 departmental action under AS 28.15.166, if the chemical test administered under 16 AS 28.33.031(a) or AS 28.35.031(a) or (g) produced a result described in 17 AS 28.35.030(a)(2) or the person refused to submit to a chemical test authorized 18 under AS 28.33.031(a) [AS 28.33.031] or AS 28.35.031(a) or (g) [AS 28.35.032], the 19 department shall revoke the person's license, privilege to drive, or privilege to obtain 20 a license, shall refuse to issue an original license, and, if the chemical test administered 21 under AS 28.33.031(a) produced a result described in AS 28.33.030(a)(2) or the person 22 refused to submit to a chemical test authorized under AS 28.33.031(a) 23 [AS 28.33.031], shall disqualify the person. The department's action takes effect seven 24 days after delivery to the person of the notice required under (a) of this section, and 25 after receipt of a sworn report of a law enforcement officer 26 (1) that a chemical test administered under AS 28.33.031(a) or 27 AS 28.35.031(a) or (g) produced a result described in AS 28.35.030(a)(2), that a 28 chemical test administered under AS 28.33.031(a) produced a result described in 29 AS 28.33.030(a)(2), or that a person refused to submit to a chemical test authorized 30 under AS 28.33.031(a) [AS 28.33.031] or AS 28.35.031(a) or (g) [AS 28.35.032]; 31 (2) that notice under (a) of this section was provided to the person; and
01 (3) describing the 02 (A) circumstances surrounding the arrest and the grounds for the 03 officer's belief that the person operated a motor vehicle, commercial motor 04 vehicle, or aircraft while intoxicated in violation of AS 28.33.030 or 05 AS 28.35.030; or 06 (B) grounds for the officer's belief that the person operated 07 a motor vehicle that was involved in an accident causing death or serious 08 physical injury to another person. 09 * Sec. 3. AS 28.15.166(g) is amended to read: 10 (g) The hearing for review of action by the department under AS 28.15.165 11 shall be limited to the issues of whether the law enforcement [ARRESTING] officer 12 had reasonable grounds to believe that the person was operating a motor vehicle that 13 was involved in an accident causing death or serious physical injury to another 14 person, or that the person was operating a motor vehicle, commercial motor 15 vehicle, or aircraft while intoxicated in violation of AS 28.33.030 or AS 28.35.030 and 16 whether 17 (1) the person refused to submit to a chemical test authorized under 18 AS 28.33.031(a) [AS 28.33.031] or AS 28.35.031(a) or (g) [AS 28.35.032] after being 19 advised that refusal would result in disqualification or the suspension, revocation, or 20 denial of the person's license, privilege to drive, or privilege to obtain a license, and 21 that the refusal is a misdemeanor; 22 (2) the chemical test administered [AUTHORIZED] under 23 AS 28.33.031(a) or AS 28.35.031(a) or (g) produced a result described in 24 AS 28.35.030(a)(2); or 25 (3) the chemical test administered [AUTHORIZED] under 26 AS 28.33.031(a) produced a result described in AS 28.33.030(a)(2). 27 * Sec. 4. AS 28.15.181(a) is amended to read: 28 (a) Conviction of any of the following offenses is grounds for the immediate 29 revocation of a driver's license, privilege to drive, or privilege to obtain a license: 30 (1) manslaughter or negligent homicide resulting from driving a motor 31 vehicle;
01 (2) a felony in the commission of which a motor vehicle is used; 02 (3) failure to stop and give aid as required by law when a motor 03 vehicle accident results in the death or personal injury of another; 04 (4) perjury or making a false affidavit or statement under oath to the 05 department under a law relating to motor vehicles; 06 (5) operating a motor vehicle or aircraft while intoxicated; 07 (6) reckless driving; 08 (7) using a motor vehicle in unlawful flight to avoid arrest by a peace 09 officer; 10 (8) refusal to submit to a chemical test authorized under 11 AS 28.33.031(a) [AS 28.33.031] or AS 28.35.031(a) or (g) [AS 28.35.032 WHILE 12 UNDER ARREST FOR OPERATING A MOTOR VEHICLE, COMMERCIAL 13 MOTOR VEHICLE, OR AIRCRAFT WHILE INTOXICATED]; 14 (9) driving while license, privilege to drive, or privilege to obtain a 15 license, canceled, suspended, or revoked, or in violation of a limitation. 16 * Sec. 5. AS 28.33.031(a) is amended to read: 17 (a) A person who operates a commercial motor vehicle in this state is 18 considered to have given consent to a chemical test or tests 19 (1) of the person's breath if the person is lawfully arrested for an 20 offense arising out of acts alleged to have been committed when the person was 21 operating the commercial motor vehicle while intoxicated; the [. THE] test or tests 22 may be administered at the direction of a law enforcement officer who has reasonable 23 grounds to believe that the person was operating a commercial motor vehicle while 24 intoxicated in violation of AS 28.33.030 or AS 28.35.030; 25 (2) of the person's breath and blood for the purpose of determining 26 the alcoholic content of the person's breath and blood, and of the person's blood 27 and urine, for the purpose of determining the presence of controlled substances 28 in the person's blood and urine, if the person is involved in a motor vehicle 29 accident that causes death or serious physical injury to another person; the test 30 or tests may be administered at the direction of a law enforcement officer who 31 has reasonable grounds to believe that the person was operating a commercial
01 motor vehicle that was involved in an accident causing death or serious physical 02 injury to another person. 03 * Sec. 6. AS 28.33.190 is amended to read: 04 Sec. 28.33.190. DEFINITIONS. In this chapter [AS 28.33.100 - 28.33.190], 05 (1) "alcoholic beverage" has the meaning given in AS 04.21.080(b); 06 (2) "commercial motor vehicle" has the meaning given in 07 AS 28.40.100; 08 (3) "controlled substance" means any substance listed as being 09 controlled under AS 11.71 or 21 U.S.C. 812 - 813, or determined under federal 10 regulations to be controlled for purposes of 21 U.S.C. 801 - 813 (Controlled 11 Substances Act); 12 (4) "disqualification" means a withdrawal of the privilege to drive a 13 commercial motor vehicle; 14 (5) "disqualified" means that a person's privilege to drive a commercial 15 motor vehicle has been withdrawn; 16 (6) "drive a commercial motor vehicle" means to affect the movement, 17 attempt to affect the movement, or to be in actual physical control, of a commercial 18 motor vehicle in motion, excluding slight motion incidental to loading, unloading, 19 servicing, or inspecting the vehicle; 20 (7) "employer" means a person who 21 (A) provides compensation to a person who operates a 22 commercial motor vehicle, including wages or other remuneration, whether 23 through an employment relationship or by contract; or 24 (B) acts as an agent of someone who provides compensation to 25 a person who operates a commercial motor vehicle, with authority to allow, 26 require, permit, assign, or authorize the person being compensated to operate 27 a commercial motor vehicle; 28 (8) "hazardous substance" means a substance found by the United 29 States Secretary of Transportation to be hazardous for purposes of 49 U.S.C. 1801 - 30 1813 (Hazardous Materials Transportation Act); 31 (9) "operating a commercial motor vehicle" means
01 (A) to drive a commercial motor vehicle; or 02 (B) whether or not the vehicle is in motion, or is capable of 03 being moved, to be in actual physical control, or to attempt to affect the 04 movement, of a commercial motor vehicle; and 05 (10) "serious traffic violation" means 06 (A) speeding 15 miles per hour or more above the posted limit; 07 (B) reckless or negligent driving, in violation of AS 28.35.040 08 or 28.35.045 or an ordinance with substantially similar elements; 09 (C) violation of a provision of this title, or a regulation adopted 10 under this title, relating to improper lane changes or following too closely, or 11 an ordinance with substantially similar elements; or 12 (D) violation of a law or ordinance relating to traffic control, 13 which was determined by the court by a preponderance of the evidence to have 14 been a factor in causing physical injury to a person. 15 * Sec. 7. AS 28.35.030(b) is amended to read: 16 (b) Except as provided under (n) of this section, driving [DRIVING] while 17 intoxicated is a class A misdemeanor. Upon conviction 18 (1) the court shall impose a minimum sentence of imprisonment of 19 (A) not less than 72 consecutive hours and a fine of not less 20 than $250 if the person has not been previously convicted; 21 (B) not less than 20 days and a fine of not less than $500 if the 22 person has been previously convicted once [; 23 (C) NOT LESS THAN 60 DAYS AND A FINE OF NOT LESS 24 THAN $1,000 IF THE PERSON HAS BEEN PREVIOUSLY CONVICTED 25 TWICE; 26 (D) NOT LESS THAN 120 DAYS AND A FINE OF NOT 27 LESS THAN $2,000 IF THE PERSON HAS BEEN PREVIOUSLY 28 CONVICTED THREE TIMES; 29 (E) NOT LESS THAN 240 DAYS AND A FINE OF NOT 30 LESS THAN $3,000 IF THE PERSON HAS BEEN PREVIOUSLY 31 CONVICTED FOUR TIMES;
01 (F) NOT LESS THAN 360 DAYS AND A FINE OF NOT 02 LESS THAN $4,000 IF THE PERSON HAS BEEN PREVIOUSLY 03 CONVICTED MORE THAN FOUR TIMES]; 04 (2) the court may not 05 (A) suspend execution of sentence or grant probation except on 06 condition that the person serve the minimum imprisonment under (1) of this 07 subsection; 08 (B) suspend imposition of sentence; 09 (3) the court shall revoke the person's driver's license, privilege to 10 drive, or privilege to obtain a license under AS 28.15.181 [, AND MAY ORDER THE 11 MOTOR VEHICLE OR AIRCRAFT THAT WAS USED IN COMMISSION OF THE 12 OFFENSE TO BE FORFEITED UNDER AS 28.35.036]. 13 * Sec. 8. AS 28.35.030 is amended by adding new subsections to read: 14 (n) A person is guilty of a class C felony if the person is convicted of driving 15 while intoxicated and has been previously convicted two or more times. Upon 16 conviction the court 17 (1) shall impose a minimum sentence of imprisonment of 360 days and 18 a fine of not less than $1,000; 19 (2) may not 20 (A) suspend execution of sentence or grant probation except on 21 condition that the person serve the minimum imprisonment under (1) of this 22 subsection; or 23 (B) suspend imposition of sentence; 24 (3) shall revoke the person's driver's license, privilege to drive, or 25 privilege to obtain a license under AS 28.15.181; and 26 (4) may order as a condition of probation that the person take antabuse 27 or a similar drug intended to prevent the consumption of an alcoholic beverage; a 28 condition of probation imposed under this paragraph is in addition to any other 29 condition authorized under another provision of law. 30 (o) If the court imposes a sentence of imprisonment under (b) or (n) of this 31 section, the court shall also order forfeiture of the vehicle used in the commission of
01 the offense, subject to remission under AS 28.35.037. 02 * Sec. 9. AS 28.35.031 is amended by adding a new subsection to read: 03 (g) A person who operates or drives a motor vehicle in this state shall be 04 considered to have given consent to a chemical test or tests of the person's breath and 05 blood for the purpose of determining the alcoholic content of the person's breath and 06 blood and shall be considered to have given consent to a chemical test or tests of the 07 person's blood and urine for the purpose of determining the presence of controlled 08 substances in the person's blood and urine if the person is involved in a motor vehicle 09 accident that causes death or serious physical injury to another person. The test or 10 tests may be administered at the direction of a law enforcement officer who has 11 reasonable grounds to believe that the person was operating or driving a motor vehicle 12 in this state that was involved in an accident causing death or serious physical injury 13 to another person. 14 * Sec. 10. AS 28.35.032(a) is amended to read: 15 (a) If a person under arrest for operating a motor vehicle or aircraft while 16 intoxicated refuses the request of a law enforcement officer to submit to a chemical 17 test authorized under AS 28.33.031(a)(1) [AS 28.33.031(a)] or AS 28.35.031(a), or 18 if a person involved in a motor vehicle accident that causes death or serious 19 physical injury to another person refuses the request of a law enforcement officer 20 to submit to a chemical test authorized under AS 28.33.031(a)(2) or 21 AS 28.35.031(g), after being advised by the officer that the refusal will [, IF THAT 22 PERSON WAS ARRESTED WHILE OPERATING A MOTOR VEHICLE OR 23 AIRCRAFT,] result in the denial or revocation of the driver's license, privilege to 24 drive, or privilege to obtain a license, that the refusal may be used against the person 25 in a civil or criminal action or proceeding arising out of an act alleged to have been 26 committed by the person while operating a motor vehicle or [, AN] aircraft [, OR A 27 WATERCRAFT] while intoxicated, and that the refusal is a crime, a chemical test may 28 not be given, except as provided by AS 28.35.035. If a person under arrest for 29 operating a watercraft while intoxicated refuses the request of a law enforcement 30 officer to submit to a chemical test authorized under AS 28.35.031(a), after being 31 advised by the officer that the refusal may be used against the person in a civil
01 or criminal action or proceeding arising out of an act alleged to have been 02 committed by the person while operating a watercraft while intoxicated, and that 03 the refusal is a crime, a chemical test may not be given, except as provided by 04 AS 28.35.035. 05 * Sec. 11. AS 28.35.032(e) is amended to read: 06 (e) The refusal of a person to submit to a chemical test authorized under 07 AS 28.33.031(a) or AS 28.35.031(a) or (g) [OF BREATH UNDER (a) OF THIS 08 SECTION] is admissible evidence in a civil or criminal action or proceeding arising 09 out of an act alleged to have been committed by the person while operating or driving 10 a motor vehicle or operating an aircraft or watercraft while intoxicated. 11 * Sec. 12. AS 28.35.032(f) is amended to read: 12 (f) Except as provided under (q) of this section, refusal [REFUSAL] to 13 submit to a [THE] chemical test [OF BREATH] authorized by AS 28.33.031(a) or 14 AS 28.35.031(a) or (g) is a class A misdemeanor. 15 * Sec. 13. AS 28.35.032(g) is amended to read: 16 (g) Upon conviction under this section 17 (1) the court shall impose a minimum sentence of imprisonment of 18 (A) not less than 72 consecutive hours and a fine of not less 19 than $250 if the person has not been previously convicted; 20 (B) not less than 20 days and a fine of not less than $500 if the 21 person has been previously convicted once [; 22 (C) NOT LESS THAN 60 DAYS AND A FINE OF NOT LESS 23 THAN $1,000 IF THE PERSON HAS BEEN PREVIOUSLY CONVICTED 24 TWICE; 25 (D) NOT LESS THAN 120 DAYS AND A FINE OF NOT 26 LESS THAN $2,000 IF THE PERSON HAS BEEN PREVIOUSLY 27 CONVICTED THREE TIMES [; 28 (E) NOT LESS THAN 240 DAYS AND A FINE OF NOT 29 LESS THAN $3,000 IF THE PERSON HAS BEEN PREVIOUSLY 30 CONVICTED FOUR TIMES; 31 (F) NOT LESS THAN 360 DAYS AND A FINE OF NOT
01 LESS THAN $4,000 IF THE PERSON HAS BEEN PREVIOUSLY 02 CONVICTED MORE THAN FOUR TIMES]; 03 (2) the court may not 04 (A) suspend execution of the sentence required by (1) of this 05 subsection or grant probation, except on condition that the person serve the 06 minimum imprisonment under (1) of this subsection; or 07 (B) suspend imposition of sentence; 08 (3) the court shall revoke the person's driver's license, privilege to 09 drive, or privilege to obtain a license under AS 28.15.181 [, AND MAY ORDER THE 10 MOTOR VEHICLE OR AIRCRAFT THAT WAS USED IN COMMISSION OF THE 11 OFFENSE BE FORFEITED UNDER AS 28.35.036]; and 12 (4) the sentence imposed by the court under this subsection shall run 13 consecutively with any other sentence of imprisonment imposed on the person. 14 * Sec. 14. AS 28.35.032(j) is amended to read: 15 (j) For purposes of this section, convictions for operating or driving while 16 intoxicated under AS 28.33.030 or AS 28.35.030 and for refusal to submit to a 17 chemical test [OF BREATH] under this section, if arising out of a single transaction 18 and a single arrest, are considered one previous conviction. 19 * Sec. 15. AS 28.35.032 is amended by adding new subsections to read: 20 (q) A person is guilty of a class C felony if the person is convicted under this 21 section and has been previously convicted two or more times. Upon conviction, (1) the court shall impose a 22 minimum sentence of imprisonment of 360 23 days and a fine of not less than $1,000; 24 (2) the court may not 25 (A) suspend execution of the sentence required by (1) of this 26 subsection or grant probation, except on condition that the person serve the 27 minimum imprisonment under (1) of this subsection; or 28 (B) suspend imposition of sentence; 29 (3) the court shall revoke the person's driver's license, privilege to 30 drive, or privilege to obtain a license under AS 28.15.181; 31 (4) the court may order as a condition of probation that the person take
01 antabuse or a similar drug intended to prevent consumption of an alcoholic beverage; 02 a condition of probation imposed under this paragraph is in addition to any other 03 condition authorized under another provision of law; and 04 (5) the sentence imposed by the court under this subsection shall run 05 consecutively with any other sentence of imprisonment imposed on the person. 06 (r) If the court imposes a sentence of imprisonment under (g) or (q) of this 07 section, the court shall also order forfeiture of the vehicle used in the commission of 08 the offense, subject to remission under AS 28.35.037. 09 * Sec. 16. AS 28.35.035(a) is amended to read: 10 (a) If a person is under arrest for an offense arising out of acts alleged to have 11 been committed while the person was operating a motor vehicle, aircraft, or watercraft 12 while intoxicated, and that arrest results from an accident that causes death or physical 13 injury to another person, a chemical test may be administered without the consent of 14 the person arrested to determine the amount of alcohol in that person's breath or blood 15 or to determine the presence of controlled substances in that person's blood and 16 urine. 17 * Sec. 17. AS 28.35.035(b) is amended to read: 18 (b) A person who is unconscious or otherwise in a condition rendering that 19 person incapable of refusal is considered not to have withdrawn the consent provided 20 under AS 28.33.031(a) or AS 28.35.031(a) or (g) and a chemical test may be 21 administered to determine the amount of alcohol in that person's breath or blood or 22 to determine the presence of controlled substances in that person's blood and 23 urine. A person who is unconscious or otherwise incapable of refusal need not be 24 placed under arrest before a chemical test may be administered. 25 * Sec. 18. AS 28.35.036 is repealed and reenacted to read: 26 Sec. 28.35.036. FORFEITURE OF MOTOR VEHICLE OR AIRCRAFT. (a) 27 Upon forfeiture of a motor vehicle or aircraft under AS 28.35.030(o) or 28.35.032(r), 28 the court shall require the surrender of the registration and certificate of title of that 29 motor vehicle or aircraft. The registration and certificate of title shall be delivered to 30 the department. 31 (b) Forfeiture of a motor vehicle or aircraft under AS 28.35.030(o) or
01 28.35.032(r) extinguishes the rights or claims of a person with an ascertainable interest 02 in the motor vehicle or aircraft, unless the person seeks remission of the forfeiture 03 under AS 28.35.037 within 90 days after the person receives notice of the right of 04 remission under AS 28.35.037. Remission of forfeiture does not apply to a person 05 convicted under AS 28.35.030(o) or 28.35.032(r) whose vehicle or aircraft is forfeited. 06 (c) If not released under AS 28.35.037, a motor vehicle or aircraft forfeited 07 under AS 28.35.030(o) or 28.35.032(r) may be disposed of by the department by 08 (1) selling the motor vehicle or aircraft; proceeds from the sale shall be 09 deposited into the general fund; 10 (2) taking custody of the property and authorizing its use by the state 11 or another political subdivision of the state; or 12 (3) destroying property that is harmful to the public. 13 * Sec. 19. AS 28.35.037(a) is repealed and reenacted to read: 14 (a) Upon forfeiture of a motor vehicle or aircraft under AS 28.35.030(o) or 15 28.35.032(r), the state shall provide written notice within 30 days to each person with 16 an ascertainable ownership or security interest in the motor vehicle or aircraft, other 17 than the person convicted of the offense resulting in forfeiture, that 18 (1) the vehicle or aircraft has been forfeited; 19 (2) the person has a right to intervene to protect an interest in the motor 20 vehicle or aircraft under (b) of this section; and 21 (3) failure to seek remission of forfeiture within 90 days will extinguish 22 the rights of the person to the vehicle or aircraft. 23 * Sec. 20. AS 28.35.037(b) is amended to read: 24 (b) At the request of a person with an ownership or security interest in a 25 vehicle or aircraft forfeited under AS 28.35.030(o) or 28.35.032(r), other than the 26 person convicted of the offense resulting in forfeiture, the court shall schedule a 27 hearing in a timely manner to determine if remission of forfeiture shall be 28 ordered as provided under this section. At the hearing, a person who claims an 29 ownership or security interest in the motor vehicle, or aircraft, must establish by a 30 preponderance of the evidence that 31 (1) the petitioner has an interest in the motor vehicle, or aircraft,
01 acquired in good faith; 02 (2) a person other than the petitioner was convicted of the offense that 03 resulted in the forfeiture; and 04 (3) before parting with the motor vehicle, or aircraft, the petitioner did 05 not know or have reasonable cause to believe that it would be used in the commission 06 of an offense. 07 * Sec. 21. AS 28.35 is amended by adding a new section to article 2 to read: 08 Sec. 28.35.039. DEFINITION FOR AS 28.35.029 - 28.35.039. In 09 AS 28.35.029 - 28.35.039, "controlled substance" has the meaning given in 10 AS 28.33.190. 11 * Sec. 22. AS 28.40.100(a) is amended by adding a new paragraph to read: 12 (24) "serious physical injury" has the meaning given in 13 AS 11.81.900(b). 14 * Sec. 23. AS 28.35.030(m)(1) and 28.35.037(d) are repealed. 15 * Sec. 24. APPLICABILITY. The amendments made by secs. 7, 8, 13, and 15 - 16 of this 16 Act apply to offenses that are committed on or after the effective date of this Act, except that 17 references to previous convictions include convictions occurring before, on, or after the 18 effective date of this Act. 19 * Sec. 25. This Act takes effect July 1, 1994.