Legislature(2001 - 2002)
03/28/2001 01:07 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 40 - REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT Number 1048 CHAIR ROKEBERG announced the next item of business, HOUSE BILL NO. 40, "An Act providing for the revocation of driving privileges by a court for a driver convicted of a violation of traffic laws in connection with a fatal motor vehicle or commercial motor vehicle accident; amending Rules 43 and 43.1, Alaska Rules of Administration; and providing for an effective date". [There had been a full hearing on HB 40 at an earlier meeting.] Number 1056 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), came forward at the request of Chair Rokeberg, reminding members that HB 40 closes a gap in current law: it provides that if the driver in a fatal accident has committed a traffic violation that doesn't rise to the level of a crime, the person's driver's license would be revoked for a year if his or her driving had contributed to the accident. Mr. Guaneli said these occur a "handful of times a year" when someone falls asleep at the wheel, for example, or is driving too fast for the conditions; he cited an example from previous testimony. He said it is an appropriate law, and the department recommends [its passage]. Number 1166 REPRESENTATIVE COGHILL asked whether [the license revocation] is a possibility now, within the discretion of the judge. MR. GUANELI answered that most violations for which this arises don't carry the possibility of a court revocation under the statutes. Number 1201 REPRESENTATIVE BERKOWITZ pointed out that [Section 2] allows the court to make a finding based on a preponderance of evidence. He asked what happens if there is pending civil or criminal litigation at the same time. MR. GUANELI responded that he thinks this assumes that there is no pending criminal action - such as for criminally negligent homicide or manslaughter - because ordinarily these offenses fall below that threshold. However, often there may be civil litigation pending; the driver will have to choose whether to defend this action or put all of his or her "cards" into the civil action. Number 1261 REPRESENTATIVE BERKOWITZ pointed out a disparity: in defending against a traffic action, one goes in front of a magistrate; in defending against a civil action, one goes in front of a jury. He suggested there ought to be some way of at least deferring the prosecution of the traffic action, in light of a potentially much more serious civil action. MR. GUANELI responded that he thinks there is always balancing to be done when laws are changed. The state's interest is in getting bad drivers who have caused a fatal accident off the road, without waiting two or three years for any civil litigation to conclude. He again suggested that people are going to have to make a choice. Number 1314 REPRESENTATIVE OGAN asked whether there is any danger of this being a lesser included offense in some felony cases. MR. GUANELI acknowledged that it may have been a problem with prior bills "where we tried to work out some sort of civil negligence standards for criminal cases," but said he doesn't believe it will come into play here. Number 1340 CHAIR ROKEBERG referred to a letter in packets from David S. Carter, Esq. [dated February 26, 2001, and received after Mr. Carter testified that day], which spoke about a ruling in Scott v. Robinson regarding civil cases. Chair Rokeberg paraphrased from the following portion of the letter: "the proposed legislation should include language which indicates that any findings made by the court pursuant to proposed [Section 28.15.182] may not be used in evidence in a civil action arising out of the accident." MR. GUANELI responded that he doesn't believe there is any particular problem with the idea proposed by Mr. Carter; in fact, it would take care of Representative Berkowitz's issue. Mr. Guaneli said he believes it is appropriate to leave the perhaps more serious financial consequences to a civil jury, and not have this determination made by a magistrate, based on a preponderance of the evidence, to be used later against someone in a civil proceeding. Number 1413 REPRESENTATIVE BERKOWITZ agreed, noting that he hadn't seen the letter prior to the meeting. He said if there is a solution to the problem, this would seem fitting. CHAIR ROKEBERG asked whether it is a problem. REPRESENTATIVE BERKOWITZ answered that based on his own experience, he thinks it would be a problem. MR. GUANELI recalled that Mr. Carter's testimony was that he wasn't sure whether, in fact, the decision by the magistrate based on a preponderance of the evidence could be used at a later civil trial to establish civil liability; Mr. Guaneli agreed, saying he wasn't sure that would be the legal result either. However, there might have been a stipulation and a very quick hearing; Mr. Guaneli indicated he agreed with Mr. Carter that the decision by the magistrate shouldn't be used against someone in a later proceeding. He suggested perhaps it could be accomplished through a conceptual amendment. Number 1476 CHAIR ROKEBERG offered his understanding that the basic rule of law is that a criminal conviction can be used as evidence in a civil action to prove negligence and so forth. MR. GUANELI agreed it is the general rule. He said the difference here is that it involves a finding, based on a preponderance of the evidence, not only that the person operated the vehicle, but that there was some factor contributing to or causing the death of the other person. That finding isn't necessary to resolve the traffic citation for crossing the centerline, for example. Therefore, this additional finding, which is the justification for taking the license away, could potentially be used in a civil action; however, because it isn't essential to the traffic citation, it might not be. MR. GUANELI suggested the court will have to look at the interests at stake for the individual and whether the person had enough at issue in the traffic citation to really put on a full case. He suggested that if a person had an incentive to put on a full case and litigate this, then he believes the court would say that the determination by the judge could be used against the person later. He suggested it will depend on how these play out, and on how the court assesses this, and will be subject to litigation. He concluded that it is probably "cleaner" to clear it up and have a provision, as Mr. Carter has indicated, that would resolve the issue once and for all. Number 1579 REPRESENTATIVE JAMES surmised that perhaps the bill came from her own district, where she'd spoken with someone who had lost a family member in an accident and was distressed because the person had continued to drive. She indicated she'd searched but couldn't find anything that she thought would be applied fairly. REPRESENTATIVE JAMES also expressed concern that someone driving on ice, for example, might spin the car 180 degrees while driving "carefully" on the highway; someone who happens to be there might get killed, yet nothing bad might happen if nobody else was around. She said she couldn't find a comparison between [the action and the possible result]. For this bill, someone whose action resulted in someone else's being killed would lose his or her license. She said it doesn't seem like a severe punishment, but in her district, where people travel a long distance to work, it could be a real problem; she asked whether such a person could get a special license to go back to work. REPRESENTATIVE JAMES expressed further concern that the bill seems intended to make people [who have lost a loved one] feel better; she questioned that as a reason for legislation. She also restated her concern that there might be some unfair results. She then recounted how her own father's failure to yield while driving resulted in the death of the wife of the other driver, who was traveling at a high rate of speed; although her father received a small fine, she indicated his [psychological] punishment was lifelong. She said she isn't convinced that taking one's license away for a year will solve the other problems that the person has. She concluded by emphasizing her mixed emotions regarding the issue. Number 1775 MR. GUANELI replied that this bill resulted from complaints received by the governor's office from a number of families of victims who died in those circumstances, in Representative James' district as well as others. He noted that at the last hearing Representative Ogan had mentioned some families [that he knew of]. Mr. Guaneli suggested it affects many people. MR. GUANELI pointed out that [HB 40] has a provision that allows the court to grant a limited license for the purpose of getting back and forth to work during the entire period of revocation; it is unlike other revocations in which, for at least some period of time, the person is without the license at all. He agreed there is a limit to how much can be done; for the precise offense of driving over the centerline or too fast for conditions, he asked, "How much do we want to do to that person?" He stated: I think ... our feeling was that where a judge has made a determination that beyond a reasonable doubt you've committed this violation, and then makes a further finding that, as a result of that, somebody died, it's not just a matter of making a victim's family feel better - which I think it also will do - but I think that there is a close enough connection to driving. And whether it's ... bad driving or bad judgment in exercising when to drive and how fast to drive, I think there's a close enough connection to driving that ... revoking a license for a period of time is an appropriate sanction. Number 1870 REPRESENTATIVE JAMES expressed concern that if the judge found out there was some [driving] error and someone had died, the trigger would be that somebody had died. She said she wouldn't have a problem with [the bill] if she could be convinced that the mistake [itself] was severe enough and neglectful enough [to warrant a revoked license]. MR. GUANELI explained that the bill specifies that the judge has to find that the violation of the traffic laws - crossing of the centerline, falling asleep, or traveling too fast - contributed to the accident. He suggested that if it were the sole cause of the accident, it would be difficult to prove that any person's actions were the only cause of an accident. However, the language "contributed to the accident" means the [driver] had some contributory role to the accident, which gives the connection to driving that justifies the license revocation. MR. GUANELI first said other language could be looked at, then restated that the judge had to make this finding, and suggested that the good faith of the judicial branch would have to be relied upon to make it in appropriate cases. He said he'd heard that these kinds of situations arise half a dozen times a year, and there isn't an expectation of more. However, they are serious cases, and something needs to be done. Number 1962 REPRESENTATIVE OGAN expressed support for the bill, telling members that two of his best friends' children - Teddy Richardson and Micah Campbell - had died because of this exact situation. The person who killed these two people wasn't culpable for anything other than violating a traffic law, he noted, and the sentence was miniscule because there were no aggravating factors such as alcohol. He stated his belief that [HB 40] is a few years too late. Number 2038 REPRESENTATIVE MEYER requested assurance that if somebody makes a judgment error, somehow [the state] will work with that person so that he or she doesn't just get the license back and do it again. Number 2065 MARY MARSHBURN, Director, Division of Motor Vehicles (DMV), Department of Administration, answered via teleconference that when someone's license is revoked, the person must take the written knowledge test again in order to have it reinstated; that covers traffic laws and behavior. In addition, the person must pay reinstatement fees and any requirements for high-risk insurance. In terms of addressing specific behavior such as spinning 180 degrees while driving, however, [the DMV] doesn't look at that. REPRESENTATIVE MEYER said he would like it to go a little further; if someone has a problem with driving-behavior patterns, taking a written test won't correct it per se. On the other hand, it can't be proven that people will no longer spin 180 degrees in the middle of the road, he acknowledged. Number 2126 REPRESENTATIVE BERKOWITZ offered an amendment on [page 2] lines 20 and 23, following "livelihood", to add "or provide care to another". Thus lines 21-23 would read: (1) the person's ability to earn a livelihood or provide care to another would be severely impaired without a limited license; and (2) limitation can be placed on the license that will enable the person to drive without danger to the public in order to earn a livelihood or provide care to another REPRESENTATIVE BERKOWITZ explained that someone could be a care provider and therefore need to drive. Number 2173 REPRESENTATIVE OGAN objected, saying it is ambiguous. For example, he cares for his own wife, or a teenager might care for his girlfriend. Furthermore, he questioned whether "care" means emotional or physical care, for example. He suggested lawyers would come up with "a million reasons" why somebody cares for someone else, which would basically gut the bill. Number 2193 REPRESENTATIVE MEYER asked Representative Berkowitz whether the intent is to address the situation of someone who has to take care of a handicapped, disabled, or elderly person and would therefore need to drive in order to take care of that person. REPRESENTATIVE BERKOWITZ affirmed that. REPRESENTATIVE MEYER suggested maybe there is a way to [make it less broad]. Number 2220 REPRESENTATIVE OGAN asked whether Representative Berkowitz would consider a friendly amendment such as "care for someone that is disabled", in which case he wouldn't object. Number 2235 REPRESENTATIVE JAMES responded that "disabled" is a pretty broad term. She asked, however, about someone who has to take a child or parent to the doctor. She said she tended to agree with Representative Berkowitz's concern, but suggested that a better term was required. Number 2261 REPRESENTATIVE BERKOWITZ pointed out that in the event of earning a livelihood, the person would still need to present evidence to the court. He said he understands Representative Ogan's concern that people care for one another all the time. CHAIR ROKEBERG asked about [the term] "long-term caregiver." REPRESENTATIVE JAMES proposed dependency on the person [as a criterion]. REPRESENTATIVE BERKOWITZ said he was willing to have assistance with crafting the phrase. Number 2279 MR. GUANELI told members he thought he had the sense of where they were going with this amendment, as well as with the issue raised by Representative Berkowitz and Mr. Carter. He offered to draft amendments to bring before the committee at the next hearing. Number 2305 CHAIR ROKEBERG announced HB 40 would be set aside in order to wait for a proposed committee substitute (CS) or amendments. [HB 40 was held over.]
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