HB 441: "An Act relating to operating or driving a motor vehicle, aircraft, or watercraft while under the influence; relating to mitigating factors in sentencing; amending Rule 35, Alaska Rules of Criminal Procedure; and providing for an effective date."
00 HOUSE BILL NO. 441 01 "An Act relating to operating or driving a motor vehicle, aircraft, or watercraft while 02 under the influence; relating to mitigating factors in sentencing; amending Rule 35, 03 Alaska Rules of Criminal Procedure; and providing for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 28.15.201(d) is amended to read: 06 (d) A court revoking a driver's license, privilege to drive, or privilege to obtain 07 a license under AS 28.15.181(c), or the department when revoking a driver's license, 08 privilege to drive, or privilege to obtain a license under AS 28.15.165(c), may grant 09 limited license privileges if 10 (1) the revocation was for a misdemeanor conviction under 11 AS 28.35.030(a) and not for a violation of AS 28.35.032; 12 (2) the person has 13 (A) not been previously convicted and the limited license is not 14 granted during the first 30 days of the period of revocation;
01 (B) been previously convicted, the limited license is not 02 granted during the first 90 days of the period of revocation, and 03 (i) the person has successfully completed a court- 04 ordered treatment program under AS 28.35.028 or former 05 AS 28.35.030(p); or 06 (ii) the court or department requires the person to use an 07 ignition interlock device during the period of the limited license; 08 (3) the court or the department determines that 09 (A) the person's ability to earn a livelihood would be severely 10 impaired without a limited license; or 11 (B) the person has successfully completed a court-ordered 12 treatment program described under AS 28.35.028 or former AS 28.35.030(p) 13 and the person's ability to earn a livelihood, attend school, or provide for 14 family health would be severely impaired without a limited license; 15 (4) the court or the department determines that a limitation under (a) of 16 this section can be placed on the license that will enable the person to earn a livelihood 17 without excessive danger to the public; 18 (5) the court or the department determines that the person is enrolled in 19 and is in compliance with or has successfully completed the alcoholism screening, 20 evaluation, referral, and program requirements of the Department of Health and Social 21 Services under AS 28.35.030(h); and 22 (6) the person has not been previously convicted under 23 AS 28.15.291(a)(2), AS 28.35.030, or 28.35.032 while driving or operating a vehicle, 24 aircraft, or watercraft under a limited license issued under this section. 25 * Sec. 2. AS 28.35 is amended by adding a new section to article 2 to read: 26 Sec. 28.35.028. Court-ordered treatment for persons charged with a 27 violation of AS 28.35.030 or 28.35.032. (a) Notwithstanding another provision of 28 law, with the consent of the state and the defendant, the court may elect to proceed in a 29 criminal case under AS 28.35.030 or 28.35.032, including the case of a defendant 30 charged with violating the terms of probation, under the procedure provided in this 31 section and order the defendant to complete a court-ordered treatment program. The
01 state may not consent to a referral under this subsection unless the state has consulted 02 with the victim and explained the process and consequences of the referral to the 03 victim. 04 (b) Once the court elects to proceed under this section, the defendant shall 05 enter a no contest or guilty plea to the offense or shall admit to a probation violation, 06 as appropriate. The state and the defendant may enter into a plea agreement to 07 determine the offense or offenses to which the defendant is required to plead. If the 08 court accepts the agreement, the court shall enforce the terms of the agreement. The 09 court shall enter a judgment of conviction for the offense or offenses for which the 10 defendant has pleaded or an order finding that the defendant has violated probation, as 11 appropriate. A judgment of conviction or an order finding a probation violation must 12 set a schedule for payment of restitution owed by the defendant. In a judgment of 13 conviction and on probation conditions that the court considers appropriate, the court 14 may withhold pronouncement of a period of imprisonment or a fine to provide an 15 incentive for the defendant to complete recommended treatment successfully. 16 Imprisonment or a fine imposed by a court shall comply with AS 12.55 or any 17 mandatory minimum or other sentencing provision applicable to the offense. 18 However, notwithstanding Rule 35, Alaska Rules of Criminal Procedure, and any 19 other provision of law, the court, at any time after the period when a reduction of 20 sentence is normally available, may consider and reduce the defendant's sentence 21 based on the defendant's compliance with the treatment plan; when reducing a 22 sentence, the court (1) may not reduce the sentence below the mandatory minimum 23 sentence for the offense unless the court finds that the defendant has successfully 24 complied with and completed the treatment plan and that treatment plan approximated 25 the severity of the minimum period of imprisonment, and (2) may consider the 26 defendant's compliance with the treatment plan as a mitigating factor allowing a 27 reduction of a sentence under AS 12.55.155(a). A court entering an order finding the 28 defendant has violated probation may withhold pronouncement of disposition to 29 provide an incentive for the defendant to complete the recommended treatment 30 successfully. 31 (c) If the defendant does not successfully complete the treatment plan imposed
01 by the court under this section, the defendant's no contest or guilty plea or admission 02 to a probation violation to the court shall stand, and the sentence previously imposed 03 shall be executed or, if sentence has not yet been imposed, sentence shall be imposed 04 by the court. 05 (d) Notwithstanding any other provision of law to the contrary, the judge, the 06 state, the defendant, and the agencies involved in the defendant's treatment plan are 07 entitled to information and reports bearing on the defendant's assessment, treatment, 08 and progress. The victim is entitled to periodic reports on the defendant's progress and 09 participation. 10 (e) In addition to other conditions authorized under AS 12.30 or AS 12.55, a 11 court may impose the following conditions of bail or probation: 12 (1) require the defendant to submit to electronic monitoring if the 13 commissioner of corrections agrees to this condition; 14 (2) require the defendant to submit to house arrest. 15 (f) A defendant who is subject to a condition set out in (e) of this section is not 16 entitled to credit for time served. 17 (g) In addition to other conditions authorized under AS 12.30, a court may 18 require the defendant to take a drug or combination of drugs intended to prevent the 19 consumption of alcoholic beverages. 20 (h) The Department of Health and Social Services may require treatment 21 providers to make advances to a defendant accepted to the court to cover the initial 22 costs related to the use of Naltrexone if the defendant is otherwise without resources to 23 pay those costs. The court shall require as a condition of probation that the defendant 24 repay the treatment provider. 25 (i) In this section, 26 (1) "court-ordered treatment program" or "treatment plan" means a 27 treatment program for a person who consumes alcohol or drugs and that 28 (A) requires participation for at least 18 consecutive months; 29 (B) includes planning and treatment for alcohol or drug 30 addiction; 31 (C) includes emphasis on personal responsibility;
01 (D) provides in-court recognition of progress and sanctions for 02 relapses; 03 (E) requires payment of restitution to victims and completion 04 of community work service; 05 (F) includes physician approved treatment of physical addiction 06 and treatment of the psychological causes of addiction; 07 (G) includes a monitoring program and physical placement or 08 housing; and 09 (H) requires adherence to conditions of probation; 10 (2) "sentence" or "sentencing" includes a suspended imposition of 11 sentence as authorized under AS 12.55.085. 12 * Sec. 3. AS 28.35.030(b) is amended to read: 13 (b) Except as provided under (n) of this section, driving while under the 14 influence of an alcoholic beverage, inhalant, or controlled substance is a class A 15 misdemeanor. Upon [EXCEPT AS PROVIDED UNDER (p) OF THIS SECTION, 16 UPON] conviction, 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 $1,500 if the person has not been previously convicted; 20 (B) not less than 20 days and a fine of not less than $3,000 if 21 the person has been previously convicted once; 22 (C) not less than 60 days and a fine of not less than $4,000 if 23 the person has been previously convicted twice and is not subject to 24 punishment under (n) of this section; 25 (D) not less than 120 days and a fine of not less than $5,000 if 26 the person has been previously convicted three times and is not subject to 27 punishment under (n) of this section; 28 (E) not less than 240 days and a fine of not less than $6,000 if 29 the person has been previously convicted four times and is not subject to 30 punishment under (n) of this section; 31 (F) not less than 360 days and a fine of not less than $7,000 if
01 the person has been previously convicted more than four times and is not 02 subject to punishment under (n) of this section; 03 (2) the court may not 04 (A) suspend execution of sentence or grant probation except on 05 condition that the person 06 (i) serve the minimum imprisonment under (1) of this 07 subsection; and 08 (ii) pay the minimum fine required under (1) of this 09 subsection; 10 (B) suspend imposition of sentence; 11 (3) the court shall revoke the person's driver's license, privilege to 12 drive, or privilege to obtain a license under AS 28.15.181, and may order that the 13 motor vehicle, aircraft, or watercraft that was used in commission of the offense be 14 forfeited under AS 28.35.036; and 15 (4) the court may order that the person, while incarcerated or as a 16 condition of probation or parole, take a drug or combination of drugs intended to 17 prevent the consumption of an alcoholic beverage; a condition of probation or parole 18 imposed under this paragraph is in addition to any other condition authorized under 19 another provision of law. 20 * Sec. 4. AS 28.35.032(g) is amended to read: 21 (g) Upon [EXCEPT AS PROVIDED UNDER (r) OF THIS SECTION, 22 UPON] conviction under this section, 23 (1) the court shall impose a minimum sentence of imprisonment of 24 (A) not less than 72 consecutive hours and a fine of not less 25 than $1,500 if the person has not been previously convicted; 26 (B) not less than 20 days and a fine of not less than $3,000 if 27 the person has been previously convicted once; 28 (C) not less than 60 days and a fine of not less than $4,000 if 29 the person has been previously convicted twice and is not subject to 30 punishment under (p) of this section; 31 (D) not less than 120 days and a fine of not less than $5,000 if
01 the person has been previously convicted three times and is not subject to 02 punishment under (p) of this section; 03 (E) not less than 240 days and a fine of not less than $6,000 if 04 the person has been previously convicted four times and is not subject to 05 punishment under (p) of this section; 06 (F) not less than 360 days and a fine of not less than $7,000 if 07 the person has been previously convicted more than four times and is not 08 subject to punishment under (p) of this section; 09 (2) the court may not 10 (A) suspend execution of the sentence required by (1) of this 11 subsection or grant probation, except on condition that the person 12 (i) serve the minimum imprisonment under (1) of this 13 subsection; and 14 (ii) pay the minimum fine required under (1) of this 15 subsection; or 16 (B) suspend imposition of sentence; 17 (3) the court shall revoke the person's driver's license, privilege to 18 drive, or privilege to obtain a license under AS 28.15.181, and may order that the 19 motor vehicle, aircraft, or watercraft that was used in commission of the offense be 20 forfeited under AS 28.35.036; 21 (4) the court may order that the person, while incarcerated or as a 22 condition of probation or parole, take a drug or combination of drugs intended to 23 prevent the consumption of an alcoholic beverage; a condition of probation or parole 24 imposed under this paragraph is in addition to any other condition authorized under 25 another provision of law; and 26 (5) the sentence imposed by the court under this subsection shall run 27 consecutively with any other sentence of imprisonment imposed on the person. 28 * Sec. 5. AS 12.55.155(d)(17); AS 28.35.030(p), and 28.35.032(r) are repealed. 29 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 INDIRECT COURT RULE AMENDMENT. AS 28.35.028(b), added by sec. 2 of this
01 Act, has the effect of amending Rule 35, Alaska Rules of Criminal Procedure, by allowing a 02 court to consider and reduce a criminal sentence outside of the time periods currently 03 provided by that rule. 04 * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section to 05 read: 06 TRANSITION. Notwithstanding sec. 5 of this Act, defendants participating in a court- 07 ordered treatment program under AS 28.35.030(p) or 28.35.032(r) or the therapeutic court 08 pilot program created by ch. 64, SLA 2001, as amended by ch. 109, SLA 2004, on the 09 effective date of this Act, shall continue in their respective programs under the terms of that 10 program until the individual program is completed. 11 * Sec. 8. This Act takes effect immediately under AS 01.10.070(c).