Legislature(2001 - 2002)
03/30/2001 01:16 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 179 - OFFENSES RELATING TO UNDERAGE DRINKING [Contains brief reference to the treatment elements in HB 4.] Number 0601 CHAIR ROKEBERG announced that the next order of business would be HOUSE BILL NO. 179, "An Act relating to underage drinking and drug offenses; and providing for an effective date." Number 0726 HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg, House Judiciary Standing Committee, Alaska State Legislature, presented HB 179 on behalf of the committee. She noted that the committee had heard a presentation by the Department of Law on the Niedermeyer decision (State v. Niedermeyer) that nullified the "Use It, Lose It" law (AS 28.15.183), which allowed a minor's driver's license to be administratively revoked if he/she has been caught using or possessing alcohol. MS. NOBREGA explained that HB 179 is an attempt to create punishments for minors who are caught using and abusing alcohol. On a first offense, the fine imposed will be between $200 and $600, and the offender will be required to complete 24 hours of community work service (CWS). On a second offense, the offender will be guilty of "repeat minor consuming," the fine imposed will be between $500 and $1,000, and the offender will be required to complete 48 hour of CWS. On a third offense, the offender will be guilty of "habitual minor consuming," a class B misdemeanor, which can carry a 90-day jail sentence and a $1,000 fine; the offender's driver's license will be revoked for six months; the offender will be required to complete 96 hours of CWS; and the offender will be required to receive alcoholism treatment. MS. NOBREGA noted that there are other provisions in HB 179 that clean up the current administrative revocation [procedures], which the Niedermeyer decision determined were inappropriate for minors who are caught consuming [alcohol]. She referred to Section 10 on page 5 that sets forth the ages for substance abuse offenses (between 13 and 21) and the ages for the illegal use or possession of firearms offenses (between 13 and 18), which is a more definite age period [than current statute stipulates]. With regard to the juvenile justice system (JJS), she referred to the Section 12 [on page 6] and said that HB 179 is exempting offenders of habitual minor consuming from the regular court process and, instead, placing them into the JJS with the belief that those offenders will be treated better and will have a better chance of rehabilitation. She then explained that Section 13 [on page 7] further defines how offenders of habitual minor consuming (third-time offenders) are adjudicated, and what is required under that JJS adjudication. Number 0940 MS. NOBREGA added that it has since been discovered that imposing CWS does entitle a minor to a jury trial, and therefore more work will be done to determine how, and at what level, CWS will be imposed, because one of the goals of HB 179 is to keep first-time offenders out of the court system. She also mentioned a forthcoming amendment that will require, when a minor does have a right to a jury trial and has a right to counsel, that the minor's parent's financial resources are also considered when determining whether an offender is eligible for court-appointed counsel. She noted that although this is already a court rule, there is a desire to place it in statute as well so that it applies specifically to minors who are in "this" situation. She also mentioned that the Department of Law (DOL) has some suggestions on how [HB 179] can avoid entitling minors to a court trial, and how to work with the CWS issues, which might again entitle minors to a court trial. She confirmed that fiscal notes had been placed in members' packets. CHAIR ROKEBERG remarked that the Department of Corrections (DOC) has submitted a zero fiscal note; the Alaska Court System (ACS or "the courts") has submitted a fiscal note of $145,000; the Department of Health and Social Services (DHSS) has submitted a fiscal note of approximately $1.5 million, and the Public Defender Agency (PDA) will be submitting a fiscal note of $379,900 for [fiscal year (FY) 2002]. REPRESENTATIVE MEYER reported that he was very familiar with the CWS program in the Anchorage area, and that it works well; juveniles help clean up the city, be it the parks or whatever needs to be done at the time. He said he was wondering how CWS programs work in the rural areas. If it is so hard to manage or control the CWS program in some areas, then maybe the [CWS] time does not need to get served, he suggested. Number 1162 CHAIR ROKEBERG said his concern is that according to the Alaska Court of Appeals decision, CWS could not be mandated without a jury trial. MS. NOBREGA confirmed that according to her understanding, only by mandating CWS is the right to a jury trial required. Thus, if CWS is discretionary, it would not necessarily follow that an offender has the right to a jury trial. She could not, however, confirm whether youth court could be chosen in place of regular court; she deferred that question to the administration. She also deferred the question of what the rational was behind changing the current age thresholds for substance abuse offenses and illegal use or possession of firearms offenses. In response to questions, she again said that a third-time offender becomes an habitual minor consuming offender and is required to attend an alcohol treatment program, but she was not sure if that also applied to a third-time substance abuse offender. CHAIR ROKEBERG said he considers the provision in HB 179 requiring alcohol education on the third offense to be a defect in drafting because he was trying to find a way to send the proper message without incurring costs. He noted that there are many different courses to take in creating this legislation, and that it is his desire to craft HB 179 in the "public eye" rather than simply offering a committee substitute. REPRESENTATIVE MEYER suggested that "minor in possession" might be like DWI (driving while intoxicated) in that an offender might commit the crime 80 or more times before being caught for a first offense. For this reason, he wondered whether waiting for a third offense to require alcohol treatment might be waiting too long, but he also said he recognized the costs involved. CHAIR ROKEBERG reminded members that in 1995 the legislature tried the experiment of the "Use It, Lose It" law. He referred to a study done by C & S Management Associates that revealed the incidence of underage drinking in Alaska has increased substantially, notwithstanding the "Use It, Lose It" law. Consequently, while the legislature could return to that option should it be willing to spend the money on court costs, he said he thought they would be better off taking a different tack entirely because testimony will illustrate that the "Use It, Lose It" law has not been that effective. Number 1492 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), confirmed that five or six years ago minor consuming was a crime, and minors who were convicted got sent to jail and acquired a criminal record for that conviction. At that time, another tack - the "Use It, Lose It" law - was instituted in an attempt to use license revocation as another incentive to minors not to drink. Over the years, the perception was that this was reasonably successful, although perhaps it was not as successful as was believed. The Alaska Supreme Court has since said that the way in which licenses were being taken away did not comport with the constitution; minors had to be given the right to a jury trial and a right to counsel. Because of that decision, everyone is now looking at whether the state's limited resources should be spent on lawyers and courts or would be better spent on some other method. MR. GUANELI acknowledged that license revocation did perhaps have a role in providing minors an incentive not to drink; however, based on a program in Fairbanks where license revocation was used in addition to screening and treatment of offenders, it was felt that this was a preferable way to go - to have treatment as a component for all offenders. Mr. Guaneli also referred to the notion that not all offenders should have the same potential penalty; there should be graduated sanctions the more often an offender drinks and is caught at it. In trying to bring all of the aforementioned ideas together, the administration proposed a series of graduated sanctions. A first offense would not subject the offender to jail time, loss of license, CWS, or anything else that would incur the expense of public defenders, prosecutors, jury trials, et cetera. But, going along with that, the idea was that minors would be assessed for what kind of alcohol problem they had. It was expected that the vast majority of those offenders would need only a short alcohol education class. Number 1657 MR. GUANELI explained that for the second offense, it was felt that perhaps some greater incentive ought to be provided, and that is where the idea - despite its cost for public defenders, et cetera - was applied that CWS and some sort of license action might be appropriate. So, moving up the scale on the second offense, those additional options would be available for the court to use; but, again, the minor would be subject to some sort of alcohol screening for his/her problem and perhaps a more extensive alcohol treatment regimen. MR. GUANELI went on to explain that for a third offense, it was felt that for persons who were over 18, perhaps a criminal sanction was appropriate; perhaps jail time or the threat of jail time was the only thing to really encourage people who are at that level to "get with the program." For a person with a third offense who was under 18, it was felt that this was of serious concern and that that person ought to be sent to the JJS (where the greater resources of that system would be available), again, with the appropriate incentives to undergo treatment. MR. GUANELI said these were the ideas that the administration put forward, and he acknowledged that some of these ideas are reflected in HB 179. He added that there is no doubt that there is a cost to all these provisions. Since coming forth with these ideas, [the DOL] has looked further at some of the law surrounding this issue, and has discovered that there are some additional limitations with regard to counting past convictions when the minor did not have the benefit of the right to a jury trial and right to counsel. To this end, [the DOL] has submitted proposed amendments that will [address this limitation]. And while there were a variety of options, he opined that [the DOL] was still pointed towards the original proposal of graduated sanctions, not undergoing the expense of jury trial and right to counsel - at least for first-time offenders - and incorporating treatment at all phases of the process. He added that the professionals will say that the most progress is going to be made via treatment, and although in HB 4 some of the treatment elements for adults are great, "more bang for our buck" can be achieved by treating juvenile offenders. Number 1860 STEVE MELTON, Fairbanks Alcohol Safety Action Program (FASAP), testified via teleconference and said that the FASAP operates a minor consuming/possession pilot program, which has been operating since September 1999 with the help of the Division of Alcohol and Drug Abuse (DADA); that program got its start through a phone call from Ben Petersdorff, manager of the Fairbanks Division of Motor Vehicles (DMV) field office, asking what could be done to monitor the minor consuming/possession situation in Fairbanks. Mr. Melton went on to recount some statistics from the FASAP, which he also made available to the committee in the form of a handout. During FY 2000 (9/99-6/00), 317 cases were opened and 192 cases were completed. During most of FY 2001 (7/00-2/01), 319 cases were opened and 225 cases were completed. He added that most of these cases are generated from the DMV and youths wanting to get their licenses back. MR. MELTON said these statistics also show that in FY 2000, 82 percent of the [defendants] had no prior convictions; 13 percent had one prior conviction; 3 percent had two prior convictions; and 2 percent had three or more prior convictions. And in FY 2001 - to date - 78 percent had no prior convictions; 13 percent had one prior conviction; 6 percent had two prior convictions; and 3 percent had three or more prior convictions. With regard to the completed cases in both FY 2000 and 2001, 78 percent of the cases completed alcohol information school (AIS); 21 percent and 20 percent (respectively) completed outpatient counseling; and 1 percent and 2 percent (respectively) completed residential treatment. Out of the total of 417 completed cases for both FY 2000 and FY 2001, which is a 66 to 70 percent completion rate, four [defendants] have re-offended for minor consuming, and two cases have re-offended for DWI. He stated that in his community, monitoring is helping to curb the minor-consuming problem. MR. MELTON explained that for the first DWI offense, an eight- hour AIS class is required (this will be increased to twelve hours as of July 2001), and treatment evaluation is also a requirement if any drugs have been involved in the offense. He said this education process seems to be working. He did, however, caution that these aforementioned statistics do not represent the totality of the minor-consuming population in the Fairbanks area; these statistics only reflect the DMV referrals. Notwithstanding this, he said the FASAP does feel as though it is making some inroads into the minor-consuming problem. He noted that the FASAP charges the offender $50 for monitoring. This is crucial, he explained, because the DMV requires offenders to receive some type of counseling or some type of AIS. Prior to FASAP, the DMV was getting sign-offs from preachers, school counselors, and anybody and everybody in the community; FASAP, however, requires that offenders go through a state-approved agency for a treatment evaluation or the AIS, and, in this way, it is assured that the youth are getting the proper type of information. He added that education can be beneficial to everyone, even the first-time offender who receives a minor-in-possession charge simply because he/she attended a party. Number 2150 MR. MELTON, in response to questions, said that for the past two years the FASAP pilot program for minors has been funded only by the $50/case monitoring fee, which by his calculations has amounted to approximately $20,850 for the 417 completed cases. He added that this is "barely enough to keep the lights on," but through the hard work of fellow personnel and the generosity of [agencies in the community] the program has continued. He noted that he receives his salary from the FASAP's adult program, which is funded through the state. He also explained that the monitoring portion of the FASAP for youths is modeled after the adult FASAP program in that it ensures that the youths have completed the treatment evaluation and the AIS. After all the requirements have been met, the youths are given a cover letter to take to the DMV so that they can get their driver's licenses back, which he said he thinks is the main motivation youth have for completing the FASAP. Mr. Melton confirmed that the concept of "Use It, Lose It" has been good in that regard, although he acknowledged that it is somewhat flawed in that the FASAP is not getting all the youths that need it. MR. MELTON, with regard to how the FASAP works, explained that youthful offenders show up at the DMV wanting to get their licenses back, and the DMV then refers these offenders to the FASAP office. Once an offender is referred to the FASAP office, FASAP requests a driving record from the DMV so that they will know how much prior involvement the offender has had with alcohol and/or controlled substances. First-time offenders are signed up for AIS; second-time (or more, or possession of controlled substance) offenders must also receive a treatment evaluation and complete any type of treatment that has been recommended. On the topic of the fines and treatment provisions in HB 179, Mr. Melton said he thought they were appropriate, and offered that some form of deferred prosecution such as substituting treatment for the large fines would also provide incentive and be of great benefit. TAPE 01-47, SIDE B Number 2475 MR. MELTON, referring to other statistics, said that for FY 2001, the FASAP program had 15 cases in which the offenders were 14 to 15 years of age; 123 cases in which the offenders were 16 to 17 years of age; 154 cases in which the offenders were 18 to 21 years of age; and 8 cases that are listed as "other" with regard to age. He added that he had not seen any offenders in the 12-to-13-year group, but he acknowledged that most of the FASAP's cases have the motivating factor of driver's license reinstatement. With regard to the success of the pilot program, he said he is very encouraged by the results, as is the DMV. He remarked that a key to that success is monitoring and getting the youths into proper state-approved programs. He noted that in some instances, the parents of the offenders also attend the AIS free of charge, and in this way, the parents also get educated along with their children. Number 2323 MARK T. MEW, Deputy Chief, Anchorage Police Department (APD), testified by teleconference and said that the APD's involvement and concern with this issue goes back further than the fallout from the Niedermeyer decision. He surmised that aspects of HB 179 will help the APD. Basically, he said, the minor consuming law in Anchorage is broken; there are currently no teeth in it. He explained that a few years ago it was a misdemeanor crime but this was scaled back to an infraction that was accompanied by the license revocation. However, there is a unique situation in Anchorage: they have difficulty prosecuting the infraction because the city prosecutor is reluctant to prosecute crimes involving persons under 18 years; those crimes fall under the jurisdiction of the state, while the state prosecutors would prefer to see these infractions prosecuted at the city level since the tickets are written by city police officers. Thus kids have learned that by pleading innocent they can request discovery, and because neither of the prosecuting agencies will provide it, the case will be dismissed and the kids can get their licenses back without any consequences. MR. MEW explained that even though there are APD officers working overtime during the summer to issue citations, and even though there are grant-funded undercover operations going on intermittently all year related to alcohol-juvenile-enforcement activities, [the APD] is losing all its tickets. He said that at one time, in an attempt to "shore this situation up," city officials created a diversion program whereby if the offender chose to go to, and complete, a treatment program, the driver's license would be returned without the offender's having to pay any fines associated with the conviction. The problem with this program is that the fine schedule is so low, and without the added incentive of license revocation, the treatment costs more than the fine; thus the kids will not take the option of going to treatment in place of paying the fine because it is cheaper, faster, and easier to simply pay the fine. Of course, the kids also know that there is no point in even doing that much, since if they plead innocent, no one will prosecute them. MR. MEW offered that HB 179 would help the APD in a number of ways. One, it raises the fine, which gives the APD "a hammer" on first- and second-time offenses to convince the kids to go to treatment. He added that there were treatment providers putting together affordable, state-approved programs. Two, because some form of consequence for the behavior will still be applied for the first and second offense via the larger fines, and because statistics indicate that 80 percent of first-time offenders do not re-offend, the expense associated with prosecution of first- time offenders can be avoided. Third, since criminal penalties will be reinstated for third-time offenders, prosecutors will be willing to prosecute; thus the tickets issued by the APD will have an effect on the problem in comparison to the citations that had no practical consequences. Mr. Mew, in response to Representative Meyer, said it is easy to catch juvenile offenders - "they literally drop in your lap" - but because of a lack of prosecution, it oftentimes feels as if the APD is spinning its wheels, he added. In conclusion, he said he was in favor of HB 179. Number 2050 LAURA J. GOSS, Community Outreach Coordinator, Adolescent Alcohol and other Drug Treatment Program, Volunteers of America - Alaska (VAA), testified via teleconference. She noted that the VAA offers a youth intervention program for first-time offenders; outpatient and intensive outpatient treatment programs in Anchorage; and a residential treatment center, which serves adolescents statewide. She opined that HB 179 does not go far enough; it tries to get tougher on underage drinking, but it fails to address the issues that lead to that behavior. Youths who are misusing alcohol and other substances need to be screened for dependency and educated about the choices they are making, early on, before they develop into problem drinkers, and before their behaviors escalate and they become a danger to those around them, both on the roads and in their homes. MS. GOSS said that it is imperative for the well-being of each individual of the community to intervene with youth who are engaging in high-risk behavior. To allow a known substance abuser to continue in life without the benefit of learning the consequences of his/her actions is nothing but irresponsible. Not only is it irresponsible to the alcohol/substance abuser, it is also irresponsible to the entire community. Ms. Goss said the VAA would like to see a provision added to HB 197 that would allow the courts the flexibility of offering first- and second- time offenders an incentive to participate in alcohol screening and any education or treatment that may be recommended from that screening. Incentives could include fine reductions to offset screening costs, and citation dismissal, if appropriate. Such a provision would allow the courts to respond to the problem of underage drinking in a more flexible manner, and would help to ensure that offenders receive appropriate intervention at an earlier, more treatable stage. MS. GOSS also proposed that for youth charged with driving under the influence/driving while intoxicated (DUI/DWI), the privilege to drive should not be reinstated until the offender complies with the assessment process and follows through with subsequent recommendations. In addition, she asked the committee to consider the impact of the community work service (CWS) component on first- and second-time offenders; as written [in HB 197], it is an unenforceable consequence. There is little or no recourse in those instances when youths fail to comply. This sends the wrong message to youths who have already shown a disregard for the law. Should the CWS provision remain in HB 179, the VAA encourages the creation of a juvenile monitoring program, similar to the adult monitoring program, which would track compliance and report back to the courts. Number 1927 MS. GOSS said that the importance of consistent imposition of sanctions and adequate monitoring cannot be emphasized enough. As a community, "we" have the responsibility to clearly and consistently convey the message that [alcohol and] substance abuse is a high-risk behavior that has potentially deadly consequences, and that it will not be tolerated as simply a matter of "kids will be kids." We want kids to be kids, but also want them to grow up to be happy, functional, and productive adults. We certainly do not want our children's behavior to be a factor in the loss of anyone's life. In summary, she said the VAA believes that intervention and education, because they are of paramount importance in combating the problem of underage drinking, should be included at an earlier stage. She again urged the committee to include a diversion program in HB 179. CHAIR ROKEBERG expressed the belief that the committee would, in part, be accepting a number of her recommendations. He then asked why she thought the CWS provision was unenforceable. MS GOSS said currently there is no one monitoring for compliance of CWS requirements, and the kids know this. She also explained, in response to further questions, that the VAA's outpatient center can serve up to 36 clients at one time, and that the residential center holds 16 clients at one time. She added that residential treatment is between four and six months, and that outpatient treatment is approximately six months. She noted that they have a two-month waiting list for the residential treatment program, and that the outpatient treatment program does not have a waiting list at this time. With regard to funding, she said that they are state-grant-funded, and that they also receive private donations. In addition, she explained that they do bill insurance, Medicaid, and Denali Kid Care; because they are nonprofit, they also offer a sliding-fee scale and do not turn anyone away for inability to pay for services. Number 1818 FRED KOPACZ, Southcentral Foundation, testified via teleconference and said that they had recently opened up a residential treatment facility for substance abusing youth. He explained that Southcentral Foundation has a number of concerns regarding HB 179 that they would be submitting in writing in the near future. In response to questions, he explained that Southcentral Foundation currently has 16 beds, and that over the summer they will be moving to a new facility, which will have 36 beds. He added that they are estimating a length of stay of between six and eighteen months due to the type of program they provide; it is a very comprehensive program, he offered, involving education, vocational education, and social skills development. He noted that currently they are funded through a grant from the federal agency, the Center for Substance Abuse Treatment, which means that there is no cost to the recipient of the services. For purposes of budgeting costs, however, the Southcentral Foundation is figuring between $335 and $350 a day. CHAIR ROKEBERG announced that they would recess the hearing on HB 179 to 3/31/01. [HB 179 was held over.]
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