SCS CSHB 204(JUD): "An Act relating to the administrative revocation of a minor's license to drive; creating criminal offenses of minor operating a vehicle after consuming alcohol, a minor's refusal to submit to chemical test, and driving during the 24 hours after being cited for minor operating a vehicle after consuming alcohol or refusal to submit to chemical test; establishing penalties for these offenses; relating to court ordered drug and alcohol screening, evaluation, referral, and programs; relating to implied consent to certain testing if operating a motor vehicle, aircraft, or watercraft; relating to an instrument's working tolerance in a chemical breath test; relating to the authority of a court to impose a suspended sentence after failure to complete a treatment program upon conviction of felony driving while intoxicated or felony refusal to submit to a chemical test; relating to the period of time a court may consider for determining prior convictions in sentencing a person convicted of felony driving while intoxicated or felony refusal to submit to a chemical test; amending Rules 6 and 32.1, Alaska Rules of Criminal Procedure, to allow the use of hearsay evidence before a grand jury in a prosecution for felony driving while intoxicated or felony refusal to submit to a chemical test and to not require a presentence report for a first felony driving while intoxicated or first felony refusal to submit to a chemical test; and providing for an effective date."
00SENATE CS FOR CS FOR HOUSE BILL NO. 204(JUD) 01 "An Act relating to the administrative revocation of a minor's license to drive; 02 creating criminal offenses of minor operating a vehicle after consuming alcohol, 03 a minor's refusal to submit to chemical test, and driving during the 24 hours 04 after being cited for minor operating a vehicle after consuming alcohol or refusal 05 to submit to chemical test; establishing penalties for these offenses; relating to 06 court ordered drug and alcohol screening, evaluation, referral, and programs; 07 relating to implied consent to certain testing if operating a motor vehicle, aircraft, 08 or watercraft; relating to an instrument's working tolerance in a chemical breath 09 test; relating to the authority of a court to impose a suspended sentence after 10 failure to complete a treatment program upon conviction of felony driving while 11 intoxicated or felony refusal to submit to a chemical test; relating to the period 12 of time a court may consider for determining prior convictions in sentencing a 13 person convicted of felony driving while intoxicated or felony refusal to submit 14 to a chemical test; amending Rules 6 and 32.1, Alaska Rules of Criminal
01 Procedure, to allow the use of hearsay evidence before a grand jury in a 02 prosecution for felony driving while intoxicated or felony refusal to submit to a 03 chemical test and to not require a presentence report for a first felony driving 04 while intoxicated or first felony refusal to submit to a chemical test; and 05 providing for an effective date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. AS 28.15.183(a) is amended to read: 08 (a) If a peace officer has probable cause to believe that a person who is at least 09 14 years of age but not yet 21 years of age has possessed or used a controlled substance 10 in violation of AS 11.71, or a municipal ordinance with substantially similar elements, 11 or possessed or consumed alcohol in violation of AS 04.16.050 or a municipal ordinance 12 with substantially similar elements, operated a vehicle after consuming alcohol in 13 violation of AS 28.35.280, or refused to submit to a chemical test under 14 AS 28.35.285 and the peace officer has cited the person or arrested the person for a 15 violation of AS 11.71, AS 04.16.050, AS 28.35.280, or 28.35.285 or the municipal 16 ordinance with substantially similar elements, the peace officer shall read a notice and 17 deliver a copy to the person. The notice must advise that 18 (1) the department intends to revoke the person's driver's license or 19 permit, privilege to drive, or privilege to obtain a license or permit; 20 (2) the person has the right to administrative review of the revocation; 21 (3) if the person has a driver's license or permit, the notice itself is a 22 temporary driver's license or permit that expires seven days after it is delivered to the 23 person; 24 (4) revocation of the person's driver's license or permit, privilege to 25 drive, or privilege to obtain a license or permit, takes effect seven days after delivery of 26 the notice to the person unless the person, within seven days, requests an administrative 27 review; 28 (5) if the person has been cited under AS 28.35.280 or under 29 AS 28.35.285, that person, under AS 28.35.290, may not operate a motor vehicle, 30 aircraft, or watercraft during the 24 hours following issuance of the citation. 31 * Sec. 2. AS 28.15.183(c) is amended to read:
01 (c) Unless the person has requested an administrative review, the department 02 shall revoke the person's driver's license or permit, privilege to drive, or privilege to 03 obtain a license or permit, effective seven days after delivery to the person of the notice 04 required under (a) of this section, upon receipt of a sworn report of a peace officer 05 (1) that the officer had probable cause to believe that the person is at 06 least 14 years of age but not yet 21 years of age and has possessed or used a controlled 07 substance in violation of AS 11.71, or a municipal ordinance with substantially similar 08 elements, or possessed or consumed alcohol in violation of AS 04.16.050 or a municipal 09 ordinance with substantially similar elements, operated a vehicle after consuming 10 alcohol in violation of AS 28.35.280, or refused to submit to a chemical test of 11 breath under AS 28.35.285; 12 (2) that the peace officer has cited the person or arrested the person for 13 (A) a violation of AS 11.71, [OR] AS 04.16.050, AS 28.35.280, 14 or 28.35.285; or 15 (B) possession or use of a controlled substance or alcohol in 16 violation of a municipal ordinance with substantially similar elements; 17 (3) that notice under (a) of this section was provided to the person; and 18 (4) describing the circumstances surrounding the violation of the 19 controlled substances provisions of AS 11.71, the alcoholic beverages provisions of 20 AS 04.16.050, or the municipal ordinance with substantially similar elements, the minor 21 operating a vehicle after consuming alcohol provisions of AS 28.35.280, or the minor 22 refusing to submit to a chemical test of breath under provisions of AS 28.35.285. 23 * Sec. 3. AS 28.15.183(g) is amended to read: 24 (g) Except as provided under (h) of this section, the department may not issue 25 a new license or reissue a license to a person whose driver's license, permit, or privilege 26 to drive has been revoked under this section unless the person is enrolled in and is in 27 compliance with, or has successfully completed 28 (1) an alcoholism education or rehabilitation treatment program, if the 29 revocation resulted from possession or consumption of alcohol in violation of 30 AS 04.16.050 or a municipal ordinance with substantially similar elements, from 31 operating a vehicle after consuming alcohol in violation of AS 28.35.280, or from
01 refusal to submit to a chemical test of breath in violation of AS 28.35.285; or 02 (2) a drug education or rehabilitation treatment program, if the revocation 03 resulted from possession or use of a controlled substance in violation of AS 11.71 or a 04 municipal ordinance with substantially similar elements. 05 * Sec. 4. AS 28.15.184(g) is amended to read: 06 (g) The hearing for review of a revocation by the department under 07 AS 28.15.183 shall be limited to the issues of whether the person was at least 14 years 08 of age but not yet 21 years of age and whether the person possessed or used a controlled 09 substance in violation of AS 11.71 or a municipal ordinance with substantially similar 10 elements, or possessed or consumed alcohol in violation of AS 04.16.050 or a municipal 11 ordinance with substantially similar elements, operated a vehicle after consuming 12 alcohol in violation of AS 28.35.280, or refused to submit to a chemical test of 13 breath in violation of AS 28.35.285. 14 * Sec. 5. AS 28.35.030(h) is amended to read: 15 (h) The court shall order a person convicted under this section to satisfy the 16 screening, evaluation, referral, and program requirements of an alcohol safety action 17 program if such a program is available in the community where the person resides, 18 or a private or public treatment facility approved by the Division of Alcoholism and 19 Drug Abuse, of the Department of Health and Social Services, under AS 47.37 [AN 20 AGENCY AUTHORIZED BY THE COURT] to make referrals for rehabilitative 21 treatment or to provide rehabilitative treatment. If a person is convicted under (n) of this 22 section, the court shall order the person to be evaluated as required by this subsection 23 before the court imposes sentence for the offense. 24 * Sec. 6. AS 28.35.030(j) is amended to read: 25 (j) If a person fails to satisfy the requirements of an authorized agency under (i) 26 of this section, the court 27 (1) may impose any portion of a suspended sentence; however, if the 28 person was convicted under (n) of this section, the court shall impose a part or all of 29 the remaining portion of any suspended sentence; 30 (2) may punish the failure as contempt of the authority of the court under 31 AS 09.50.010 or as a violation of a condition of probation; and
01 (3) shall order the revocation or suspension of the person's driver's 02 license, privilege to drive, and privilege to obtain a driver's license until the requirements 03 are satisfied. 04 * Sec. 7. AS 28.35.030(n) is amended to read: 05 (n) A person is guilty of a class C felony if the person is convicted of driving 06 while intoxicated and has been previously convicted two or more times within the five 07 years preceding the date of the present offense. For purposes of determining 08 minimum sentences based on previous convictions [IF A PERSON HAS BEEN 09 PREVIOUSLY CONVICTED], the provisions of (o)(4) of this section apply [, EXCEPT 10 THAT ONLY CONVICTIONS OCCURRING WITHIN FIVE YEARS PRECEDING 11 THE DATE OF THE PRESENT OFFENSE MAY BE INCLUDED]. Upon conviction, 12 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 or 19 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 AS 28.35.037. 02 * Sec. 8. AS 28.35.031(a) is amended to read: 03 (a) A person who operates or drives a motor vehicle in this state or who operates 04 an aircraft as defined in AS 28.35.030(o) or who operates a watercraft as defined in 05 AS 28.35.030(o) shall be considered to have given consent to a chemical test or tests of 06 the person's breath for the purpose of determining the alcoholic content of the person's 07 blood or breath if lawfully arrested for an offense arising out of acts alleged to have been 08 committed while the person was operating or driving a motor vehicle or operating an 09 aircraft or a watercraft while intoxicated or if lawfully arrested under AS 28.35.280 10 for the offense of minor operating a vehicle after consuming alcohol. The test or 11 tests shall be administered at the direction of a law enforcement officer who has 12 reasonable grounds to believe that the person was operating or driving a motor vehicle 13 or operating an aircraft or a watercraft in this state while intoxicated or that the person 14 was a minor operating a vehicle after consuming alcohol. 15 * Sec. 9. AS. 28.35.032(l) is amended to read: 16 (l) The court shall order a person convicted under this section to satisfy the 17 screening, evaluation, referral, and program requirements of an alcohol safety action 18 program if such a program is available in the community where the person resides, 19 or a private or public treatment facility approved by the Division of Alcoholism and 20 Drug Abuse, of the Department of Health and Social Services, under AS 47.37 [AN 21 AGENCY AUTHORIZED BY THE COURT] to make referrals for rehabilitative 22 treatment or to provide rehabilitative treatment. If a person is convicted under (p) of this 23 section, the court shall order the person to be evaluated as required by this subsection 24 before the court imposes sentence for the offense. 25 * Sec. 10. AS 28.35.032(n) is amended to read: 26 (n) If a person fails to satisfy the requirements of an authorized agency under 27 (m) of this section, the court 28 (1) may impose any portion of a suspended sentence; however, if the 29 person was convicted under (p) of this section, the court shall impose a part or all of 30 the remaining portion of any suspended sentence; 31 (2) may punish the failure as contempt of the authority of the court
01 under AS 09.50.010 or as a violation of a condition of probation; and 02 (3) shall order the revocation or suspension of the person's driver's 03 license, privilege to drive, and privilege to obtain a driver's license until the 04 requirements are satisfied. 05 * Sec. 11. AS 28.35.032(p) is amended to read: 06 (p) A person is guilty of a class C felony if the person is convicted under this 07 section and has been previously convicted two or more times within the five years 08 preceding the date of the present offense. For purposes of determining minimum 09 sentences based on previous convictions [IF A PERSON HAS BEEN PREVIOUSLY 10 CONVICTED], the provisions of AS 28.35.030(o)(4) apply [, EXCEPT THAT ONLY 11 CONVICTIONS OCCURRING WITHIN FIVE YEARS PRECEDING THE DATE OF 12 THE PRESENT OFFENSE MAY BE INCLUDED]. Upon conviction, 13 (1) the court shall impose a fine of not less than $5,000 and a 14 minimum sentence 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) the court may not 21 (A) suspend execution of the sentence required by (1) of this 22 subsection or grant probation, except on condition that the person serve the 23 minimum imprisonment under (1) of this subsection; or 24 (B) suspend imposition of sentence; 25 (3) the court shall revoke the person's driver's license, privilege to 26 drive, or privilege to obtain a license under AS 28.15.181(c); 27 (4) the court may order as a condition of probation or parole that the 28 person take a drug, or combination of drugs, intended to prevent consumption of an 29 alcoholic beverage; a condition of probation imposed under this paragraph is in 30 addition to any other condition authorized under another provision of law; 31 (5) the sentence imposed by the court under this subsection shall run
01 consecutively with any other sentence of imprisonment imposed on the person; and 02 (6) the court may also order forfeiture under AS 28.35.036, of the 03 vehicle or aircraft used in the commission of the offense, subject to remission under 04 AS 28.35.037. 05 * Sec. 12. AS 28.35.039 is amended to read: 06 Sec. 28.35.039. DEFINITIONS FOR AS 28.35.029 - 28.35.039. In 07 AS 28.35.029 - 28.35.039, 08 (1) "controlled substance" has the meaning given in AS 28.33.190; 09 (2) "alcohol safety action program" means a program designated by 10 the commissioner of health and social services as an alcohol safety action program. 11 * Sec. 13. AS 28.35 is amended by adding new sections to read: 12 ARTICLE 6. CERTAIN OFFENSES RELATING TO MINORS. 13 Sec. 28.35.280. MINOR OPERATING A VEHICLE AFTER CONSUMING 14 ALCOHOL. (a) A person who is at least 14 years of age but not yet 21 years of age 15 commits the offense of minor operating a vehicle after consuming alcohol if the person 16 operates or drives a motor vehicle or operates an aircraft or a watercraft after having 17 consumed any quantity of alcohol. A peace officer who has probable cause to believe 18 that a person has committed the offense of minor operating a vehicle after consuming 19 alcohol may 20 (1) place the person under arrest; 21 (2) request that the person submit to a chemical test or tests of the 22 person's breath for the purpose of determining the alcoholic content of the person's 23 blood or breath; and 24 (3) transport the person to a location at which a chemical or other test 25 authorized under (2) of this subsection may be administered. 26 (b) If a chemical test under this section reveals any alcohol concentration within 27 the person's blood or breath, the person shall be cited for violating this section and then 28 released unless there is a lawful reason for further detention. A person who is 18 years 29 of age or older shall be released on the person's own recognizance. A person who is 30 under the age of 18 shall be released to a parent, guardian, or legal custodian. 31 (c) A person who is cited for violating this section shall be advised by a peace
01 officer that it is unlawful under AS 28.35.290 for the person to operate a motor vehicle, 02 aircraft, or watercraft during the 24 hours following the issuance of the citation. 03 (d) The offense of a minor operating a vehicle after consuming alcohol is an 04 infraction. Upon conviction, the court shall impose a fine of not more than $1,000, 05 community work service, or both. The court may offer the minor the option of 06 performing community work in place of a fine or a portion of the fine. The value of 07 community work in place of a fine is as specified in AS 12.55.055(c). 08 (e) In this section, 09 (1) "operate an aircraft" has the meaning given in AS 28.35.030(o); 10 (2) "operate a watercraft" has the meaning given in AS 28.35.030(o). 11 Sec. 28.35.285. MINOR'S REFUSAL TO SUBMIT TO CHEMICAL TEST. 12 (a) If a person under arrest for minor operating a vehicle after consuming alcohol 13 refuses the request of a peace officer to submit to a chemical test or tests of the person's 14 breath authorized under AS 28.35.031(a) and 28.35.280(a), after being advised by the 15 officer that the refusal will result in the denial or revocation of the driver's license, 16 privilege to drive, or privilege to obtain a license, that the refusal may be used against 17 the person in a civil or criminal action or proceeding arising out of an act alleged to have 18 been committed by the person while operating a vehicle after consuming alcohol, and 19 that the refusal is a violation, a chemical test may not be given. 20 (b) A person who is cited for violating this section shall be advised by a peace 21 officer that it is unlawful under AS 28.35.290 for the person to operate a motor vehicle, 22 aircraft, or watercraft during the 24 hours following the issuance of the citation. 23 (c) The refusal of a minor to submit to a chemical test authorized under 24 AS 28.35.031(a) and 28.35.280(a) is admissible evidence in a civil or criminal action or 25 proceeding arising out of an act alleged to have been committed by the person while 26 operating a vehicle after consuming alcohol. 27 (d) Refusal to submit to a chemical test or tests of the person's breath requested 28 under AS 28.35.280 is an infraction. Upon conviction, the court shall impose a fine of 29 not more than $1,000, or community work service, or both. The court may offer the 30 minor the option of performing community work in place of a fine or a portion of the 31 fine. The value of community work in place of a fine is as specified in AS 12.55.055(c).
01 Sec. 28.35.290. DRIVING DURING THE 24 HOURS AFTER BEING CITED 02 FOR ALCOHOL OR BREATH TEST OFFENSES. (a) A person who has been cited 03 for minor operating a vehicle after consuming alcohol under AS 28.35.280 or for refusal 04 to submit to a chemical test of breath under AS 28.35.285 may not operate a motor 05 vehicle, aircraft, or watercraft during the 24 hours following issuance of the citation. 06 (b) Operating a motor vehicle, aircraft, or watercraft during the 24 hours after 07 being cited for minor operating a vehicle after consuming alcohol or for minor's refusal 08 to submit to a chemical test is an infraction. Upon conviction, the court shall impose a 09 fine of not more than $1,000, or community work service, or both. The court may offer 10 the minor the option of performing community work in place of the fine or a portion of 11 the fine. The value of community work in place of a fine is as specified in 12 AS 12.55.055(c). 13 (c) In this section, 14 (1) "operate an aircraft" has the meaning given in AS 28.35.030(o); 15 (2) "operate a watercraft" has the meaning given in AS 28.35.030(o). 16 * Sec. 14. AS 28.35.280(d) is repealed and reenacted to read: 17 (d) The offense of a minor operating a vehicle after consuming alcohol is an 18 infraction. Upon conviction, the court shall impose a fine of not more than $1,000. The 19 court may offer the minor the option of performing community work in place of a fine 20 or a portion of a fine. The value of community work in place of a fine is as specified 21 in AS 12.55.055(c). 22 * Sec. 15. AS 28.35.285(d) is repealed and reenacted to read: 23 (d) Refusal to submit to a chemical test or tests of the person's breath requested 24 under AS 28.35.280 is an infraction. Upon conviction, the court shall impose a fine of 25 not more than $1,000. The court may offer the minor the option of performing 26 community work in place of a fine or a portion of the fine. The value of community 27 work in place of a fine is as specified in AS 12.55.055(c). 28 * Sec. 16. AS 28.35.290(b) is repealed and reenacted to read: 29 (b) Operating a motor vehicle, aircraft, or watercraft during the 24 hours after 30 being cited for minor operating a vehicle after consuming alcohol is an infraction. Upon 31 conviction, the court shall impose a fine of not more than $1,000. The court may offer
01 the minor the option of performing community work in place of the fine or a portion of 02 the fine. The value of community work in place of a fine is as specified in 03 AS 12.55.055(c). 04 * Sec. 17. AS 28.40 is amended by adding a new section to read: 05 Sec. 28.40.060. BREATH TEST RESULT VALIDITY. If an offense described 06 under this title requires that a chemical test of a person's breath produce a particular 07 result, and the chemical test is administered by a properly calibrated instrument approved 08 by the Department of Public Safety, the result described by statute is not affected by the 09 instrument's working tolerance. 10 * Sec. 18. Rule 6(r)(1), Alaska Rules of Criminal Procedure, is amended to read: 11 (1) Evidence which would be legally admissible at trial shall be 12 admissible before the grand jury. In appropriate cases, however, witnesses may be 13 presented to summarize admissible evidence if the admissible evidence will be 14 available at trial. Except as stated in subparagraphs (2), [AND] (3), and (6), hearsay 15 evidence shall not be presented to the grand jury absent compelling justification for 16 its introduction. If hearsay evidence is presented to the grand jury, the reasons for its 17 use shall be stated on the record. 18 * Sec. 19. Rule 6(r), Alaska Rules of Criminal Procedure, is amended by adding a new 19 paragraph to read: 20 (6) In a prosecution for driving while intoxicated under 21 AS 28.35.030(n) or for refusal to submit to a chemical test under AS 28.35.032(p), 22 hearsay evidence received through the Alaska Public Safety Information Network or 23 from other governmental agencies of prior convictions of driving while intoxicated or 24 refusal to submit to a chemical test may be presented to the grand jury. 25 * Sec. 20. Rule 32.1(a), Alaska Rules of Criminal Procedure, is amended to read: 26 (a) Scheduling. At the time guilt in a felony case is established by verdict or 27 plea, the judge shall establish the date for a sentencing hearing and a presentencing 28 hearing, if appropriate, and except as provided under subsection (f) of this rule, 29 shall order a presentence investigation by the Department of Corrections. If the judge 30 elects to schedule a single hearing, all of the procedures for the presentencing and 31 sentencing hearings shall be applicable at the single hearing.
01 * Sec. 21. Rule 32.1, Alaska Rules of Criminal Procedure, is amended by adding a new 02 subsection to read: 03 (f) When Presentence Investigation Not Required. Unless a person may be 04 sentenced to a presumptive term of imprisonment under AS 12.55.125(e)(1) or (2), a 05 presentence investigation by the Department of Corrections is not required for a 06 defendant convicted of driving while intoxicated under AS 28.35.030(n) or refusal to 07 submit to a chemical test under AS 28.35.032(p). 08 * Sec. 22. Sections 1 - 13 and 17 - 21 of this Act apply only to acts committed on or after 09 the effective date of secs. 1 - 13 and 17 - 21 of this Act, except that to the extent that the 10 amendments made by secs. 6, 7, 10, 11, and 18 - 21 of this Act involve prior convictions, 11 those prior convictions may have occurred before, on, or after the effective date of this Act. 12 * Sec. 23. Sections 14 - 16 of this Act take effect only upon a final decision by the Alaska 13 Court of Appeals and the Alaska Supreme Court that the possibility of imposing community 14 work service by the court for the offenses prohibited under AS 28.35.280, 28.35.285, and 15 28.35.290 gives rise to the right to court appointed counsel and trial by jury.