Legislature(2001 - 2002)
03/31/2001 11:19 AM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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HB 179 - OFFENSES RELATING TO UNDERAGE DRINKING [Contains brief references to SB 105 and HB 4 regarding loss and allocation of an offender's permanent fund dividend (PFD) for certain offenses.] Number 0129 CHAIR ROKEBERG announced the next order of business, HOUSE BILL NO. 179, "An Act relating to underage drinking and drug offenses; and providing for an effective date." He noted that he would reopen public testimony. [Because of its length, Amendment 1, which was discussed and adopted during the meeting, is found at the end of the minutes for HB 179. Shorter amendments are included in the main text.] CHAIR ROKEBERG called an at-ease at 1:39 p.m. He called the meeting back to order at 1:42 p.m. CHAIR ROKEBERG asked Mr. Guaneli to explain Amendment 1. [Amendment 1 is provided with original punctuation at the end of the minutes on HB 179.] Number 0196 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), advised members that the administration originally had proposed an underage-drinking bill; although [HB 179] adopted many of the administration's proposals, it didn't adopt some significant parts. Therefore, Amendment 1 goes back to the administration's proposal. MR. GUANELI referred to a chart [in packets], noting that originally proposed was a graduated system in which a first-time offender would be subject to certain penalties, a second-time offender would be subject to more, and so on. One goal, at least for the first offense, was to try to eliminate costs by eliminating the right to a jury trial or to a public defender. Toward that end, proposed in the first column of the chart under first offense, is simply a fine [$600], all suspended, so that the amount at stake doesn't trigger a jury trial; no jail time is available, so that it isn't technically classified as a "crime"; and no license revocation or community work service (CWS) is available, which the courts have held would trigger a right to a jury trial and a right to counsel, which drive up costs for first-time offenders. MR. GUANELI suggested that most [of these offenders] merely need education on the effects of alcohol, with the hope that the person will never re-offend. Therefore, all the functions relating to a criminal case, including a jury trial and attorneys, may not be necessary. Number 0375 MR. GUANELI referred to the bottom section of the chart. He emphasized the importance of referral to the Juvenile Alcohol Safety Action Program (JASAP), whether for first-time offenders, second-time offenders, or third offenders. He expressed the belief is that all of the other options - including fines, jail, revocation of licenses, or CWS - won't be nearly as effective as having those options plus some form of screening as well as education or treatment. MR. GUANELI, still referring to the chart, addressed the second offense, for which more is at stake in terms of money [$1,000, with up to half suspended]. He pointed out that although jail still isn't available, license revocation is, but only if the person doesn't complete the treatment or the mandated 48 hours of CWS. Number 0464 MR. GUANELI pointed out that someone with a third offense probably exhibits signs of alcohol dependence. As with drunk driving, for each time a person is caught, the person likely commits the offense numerous times. He said for third-time offenders under age 18, it is felt by juvenile justice officials that sending the person to the juvenile justice system is valuable; it could be formally going to juvenile court or going through the so-called informal adjustment process, in which a probation officer enters into a probationary agreement [with the offender]. This would allow more supervision and more program opportunities. MR. GUANELI addressed [third-time offenders] ages 18 and older, noting that the options are more limited. Therefore, it will be left up to a district court judge, who will have the full range of penalties, including a fine [up to $1,000, all of which can be suspended, according to the chart]; jail time, if appropriate [up to 90 days, all of which can be suspended, according to the chart]; six months' license revocation upon conviction, and six more months' revocation if treatment isn't completed; as well as 96 hours of CWS. MR. GUANELI said, in a nutshell, the proposal is for a graduated set of penalties, with the JASAP referral, screening, and treatment, which the offender must pay for, at each stage. He emphasized that the committee must decide to what extent the JASAP will be used, which will involve cost. He restated the importance of the treatment alternative in order to have a successful program. MR. GUANELI offered to discuss the issue of wiping the slate clean. He asked that any questions about treatment, including both programmatic and budgetary aspects, be addressed to the officials from the Department of Health and Social Services (DHSS). Number 0684 MARY MARSHBURN, Director, Division of Motor Vehicles (DMV), Department of Administration, testified via teleconference. In answer to a question by Chair Rokeberg, she specified that there were 4,737 violations by people under the age of 21 in the calendar year 2000. In response to a question by Representative James, she said those were for minor consuming and possessing, but not for drug use, fraudulent use of a driver's license, "zero tolerance," or DWI (driving while intoxicated). Number 0734 REPRESENTATIVE BERKOWITZ requested confirmation whether someone who was underage and [charged with] DWI would also be charged with minor consuming. MR. GUANELI answered, "In all likelihood, we would charge both, but the most common disposition in those cases is there's a plea to the drunk-driving charge and a dismissal of the minor- consuming charge." CHAIR ROKEBERG suggested that is because there is a revocation anyway for the [DWI]. MR. GUANELI said right now there is a $300 maximum fine for minor consuming; for drunk driving, however, it goes up to $5,000, potentially, and there is jail time. Number 0807 MR. GUANELI, in response to Chair Rokeberg's mention of wiping the slate clean, said hundreds or perhaps thousands of persons under the age of 21 have prior convictions for minor consuming under current law. Because of the way the law is structured, and because of the way that the supreme court has implemented the law, those persons were convicted without the right to a jury trial or counsel. In Alaska law, he reported, a couple of cases - one from the supreme court and one from the court of appeals - say that if there is a conviction when a person didn't have the right to a jury trial or to counsel, that conviction cannot be used as a basis for enhancing a future penalty; therefore, it cannot be used as the person's first offense under a third-time-offender-type situation. CHAIR ROKEBERG asked Mr. Guaneli to provide a memorandum to the committee later, with a case citation. MR. GUANELI agreed to do so. He continued, pointing out that if a new system is created for the first, second, and third offenses, none of those past convictions can be relied upon. That is why he uses the phrase "wipe the slate clean": all offenders will have to treated as first-time offenders under the new system. He emphasized that having alcohol screening and treatment will be even more important, because starting now, a lot of so-called first-time offenders will actually be second- or third-time offenders. Number 0944 REPRESENTATIVE JAMES said a huge number of adults convicted of DWI don't re-offend. She inquired about statistics on whether underage DWI offenders offend again. MR. GUANELI suggested it would be good to get statistics from the DMV on the number of second-time minor-consuming offenses that occur each year [Ms. Marshburn provided statistics later]. He recalled, from looking at statistics, that every year there are roughly 5,000 total offenders, with about 1,000 being second-time offenders and much fewer being third-time offenders. In response to a suggestion by Representative James that it is probably about the same rate, he agreed that the connection could be made. Number 1029 REPRESENTATIVE BERKOWITZ asked what the objective is with HB 179. CHAIR ROKEBERG stated: We're trying to dissuade juveniles from consuming alcohol. I take it as a matter of public policy. And it's up to this committee to figure out what the best way to do that is. Historically, we had the "Use it, Lose It" provisions for revocation that simplified matters and decreased the cost. CHAIR ROKEBERG told members he hoped they had all had a chance to read the executive summary of C & S Management Associates, which addresses some of the problems in the state. [Provided in packets was page 83, "VI. Substance Abuse Treatment Resources for Minors."] He said the question is how to make a transition from the current unconstitutional Niedermeyer methodology of "Use it, Lose It" to a new statute without losing credibility with the youth of the state. He suggested the need, however, to make a strong enough statement that it gets the attention of the youth of the state. Number 1130 REPRESENTATIVE BERKOWITZ said "Use it, Lose It" can't be used with a driver's license, but perhaps could be used with the [permanent fund] dividend (PFD). CHAIR ROKEBERG said he didn't see why not, if it is criminalized. He noted that pending legislation - SB 105 - would have a similar impact. Number 1170 MS. MARSHBURN spoke up to offer statistics. She said for the year 2000, there were 2,700 first-time offenders, 900 second- time offenders, and 1,000 "third and up." REPRESENTATIVE JAMES commented that she doesn't believe these young people are thinking as seriously about it upon the first offense, in comparison to adults. REPRESENTATIVE BERKOWITZ suggested the implication that "Use it, Lose It" wasn't having a serious impact, either. Number 1220 CHAIR ROKEBERG referred to his mention at an earlier hearing of a 130 percent increase since implementation of "Use it, Lose It." He suggested testimony would be mixed about how effective it is. He noted that at a prior meeting, Mr. Melton [from the Fairbanks Alcohol Safety Action Program (FASAP)] had testified that he believed it was effective, as far as it went; however, [Mr. Melton] is limited in the tools he uses. MR. GUANELI responded that until three months ago, it was believed that there was a system in which a person's driver's license could be taken away, and a $300 fine was the only thing available. However, now that the driver's license aspect has been lost, all that minors face is a $300 fine for minor consuming. If the combination of [revocation of a] license and a $300 fine wasn't particularly effective, he cautioned, the fine alone certainly wouldn't be very effective, which is what would exist if nothing were done. On another subject, he said the cost of giving a jury trial to all of these offenders would be very high; he mentioned the fiscal note from the Public Defender Agency (PDA). CHAIR ROKEBERG estimated that the costs would be about the same if either trials were required under the "Use it, Lose It" scenario or this new program were to be instituted. MR. GUANELI agreed, saying either everyone could be provided an attorney and then the licenses would be revoked, or the cost for the public defender alone would roughly equal the estimate from the DHSS for the JASAP. He emphasized the desire to craft a scheme whereby the costs for attorneys - including prosecutors and public defenders - would be put instead into treatment, to the extent possible; he acknowledged that the HB 179 doesn't do that completely because it still provides attorneys for a second and third offense. Number 1316 REPRESENTATIVE COGHILL asked whether the intent is to facilitate a way to get into the JASAP, for which there is only one pilot program in Alaska at this point, or to facilitate a penalty through the court system. He said it looks as if [Amendment 1] is trying to facilitate a JASAP - which will have to be facilitated somewhere in the system, through the DHSS, he surmised - that incorporates a learning process and a penalty. Number 1377 CHAIR ROKEBERG informed members that Ms. Nobrega had just handed him "an example of the differential." He said for HB 179, the [fiscal] note from the PDA is roughly $380,000. However, a fiscal note had been requested for the current status, if jury trials were to be enforced; he said the PDA's fiscal note for that alone is $1.3 million. Number 1414 REPRESENTATIVE JAMES asked where the parents fit in, and what the juvenile status of the offender is. CHAIR ROKEBERG pointed out that Mr. Guaneli distinguishes between offenders under the age of 18 and those 18 and older. He said the committee needs to deal with that, because there are people between the age of majority and 21 years old, which is the statutory age for drinking in Alaska. As for the parents, he said an amendment will be offered that adopts Court Rule 11, which says the parents are responsible for the fines and fees. He suggested that parents would be looked to for fines and fees for treatment, through a court order and/or by statute, if the committee approves. Number 1462 REPRESENTATIVE COGHILL mentioned a parent of a 17-year-old having to go to court; he suggested that authority could come into question. He said that many times there are family struggles, in a variety of circumstances, that could exist. REPRESENTATIVE BERKOWITZ noted that one standard condition of adult probation or release is a "no driving" provision. Under a JASAP, which is essentially a juvenile probation, he asked what authority could there be for the probation officer or department to impose the "no driving" condition. ROBERT BUTTCANE, Legislative and Administrative Liaison, Division of Juvenile Justice, Department of Health and Social Services (DHSS), answered that what Representative Berkowitz had mentioned is provided for in the proposal in [Amendment 1]. Third-time offenders would be subject to all of the provisions and conditions of the delinquency chapter, [AS] 47.12; under that, the department has some broad authorities to solicit the participation of the parent and, in some cases, to have the court order the participation of the parent. MR. BUTTCANE continued, explaining that sanctions might include suspension of a driver's license; he said that can be negotiated as part of the delinquency disposition order - a formal order of the court - or through an informal diversion upon a voluntary agreement with the parent and the minor. MR. BUTTCANE said the scheme proposed is that for those juveniles diverted through a community diversion action, in order for [the division] to be able to enter into an agreement with them for an informal diversion, they would have to agree that the minor would surrender his or her right to drive for a period of six months, just as if he or she were adjudicated delinquent through the formal delinquency process in court. Number 1602 REPRESENTATIVE BERKOWITZ asked whether that condition of "no driving" through a JASAP could be part of a first offense, without running afoul of the Niedermeyer decision. MR. GUANELI articulated the difference between a JASAP and juvenile probation. He said a JASAP, as he understands it, is a screening mechanism for determining one's need for alcohol treatment and then is a referral mechanism to certain treatment providers; the JASAP program may also, in some cases, provide some of that treatment. He said he doesn't know that it is set up to monitor other types of activities, however, as a probation officer would be; it is not designed to be a "substitute probation officer." It is only when there is a third-time offender who has to go to juvenile court and get a juvenile probation officer that this more formal agreement - that the person will lose his or her license, or that the person simply won't drive - will come into play. MR. GUANELI pointed out that it couldn't be done on a first offense because the possible loss of license triggers a right to a jury trial and right to counsel; that is what the [state] has been trying to avoid for the first offense in order to keep the costs down. In response to Representative Berkowitz's question regarding whether that is true even in a probationary context, Mr. Guaneli said he believes that if loss of a valuable license is a possible sanction, that triggers the right to a jury trial; he specified that he thinks the courts would hold that, although they may not have specifically addressed the question of whether the loss of license came about as a part of probation. REPRESENTATIVE BERKOWITZ said if it isn't as part of a probationary period, there are less-rigorous protections attached; the probation would tend to be focused on the individual who had come under "probation supervision." He asked whether that doesn't address some of the Niedermeyer concerns. Number 1710 MR. GUANELI emphasized the desire to not be in the same situation as two years ago, when the supreme court struck down a scheme that had provisions that might have worked, but that weren't guaranteed to do so. He stated his preference for taking a cautious approach. He said something needs to be done; the whole statutory scheme that the state had been operating under for five or six years has been thrown out the window, and it is uncomfortable for everyone in the justice system. He restated his concern about triggering a right to a jury trial for first-time offenders. REPRESENTATIVE BERKOWITZ expressed concern that this is constitutionally "suspect" because the third offense is contingent upon a first and a second offense, which are done, under this scenario, without recourse to a jury trial or a public defender. MR. GUANELI offered that a right to a jury trial and right to counsel are still triggered for a second offense because the CWS is mandated and because license revocation is possible. REPRESENTATIVE JAMES asked why they are waiting until the third offense to refer people to the juvenile justice system (JJS); she suggested the referral to the JJS should come on the second offense, and then perhaps there would not be a third offense. Number 1829 LOREN JONES, CMH/API Replacement Project Director, Division of Mental Health & Developmental Disabilities, Department of Health & Social Services (DHSS), on the distinctions between the JASAP and probation officers, said that within the adult Alcohol Safety Action Program (ASAP), misdemeanant adults are monitored for compliance with conditions of probations set by the court, but ASAP does not have any powers to set additional conditions of probation. He said he envisions the JASAP working in much the same fashion: juveniles would be monitored for compliance with conditions of probations set by the court, but neither [HB 179] nor any other portion of statute would give JASAP the right to set conditions of probation beyond what is set by the judge at sentencing. [The JASAP] would merely be providing the link between the treatment/education system and the court. REPRESENTATIVE BERKOWITZ offered that although the Niedermeyer decision might have struck down a portion of a statute, some of those same penalties are still available to the court if they are causally related to the crime; if a juvenile comes in front of judge for a minor consuming case and there is some link to driving, a judge could still say it's minor consuming and that one of the conditions of probation for which the fine is being suspended is that the juvenile not drive. MR. GUANELI concurred that if there was a link to driving, such a condition could probably be set. However, in the fairly typical situations when there is a beer party and a juvenile gets arrested but has not been driving, that link does not exist. He surmised that the vast majority of cases will not involve that link to driving, and for those cases that do, he said the judge has broader authority. REPRESENTATIVE BERKOWITZ suggested that on an individual basis, the prosecutor could make the argument that the juvenile drove to the party. After looking at the statistics, he said he questioned whether the "Use It, Lose It" law was that effective; he reasserted the suggestion of seeking another mechanism to deter juveniles from drinking such as possibly taking away the offender's PFD, which would also offset the fiscal note. Number 2023 CHAIR ROKEBERG, after commenting that the committee would discuss the issue of the PFD further at a later time, said that one of the problems surrounding the PFD is allocation of the funds for treatment and education. REPRESENTATIVE BERKOWITZ noted that with juveniles, there is a greater likelihood that the PFD would be available for this purpose because most juveniles will not have a backlog of other debts owed. Using an estimate of 1,500 juvenile offenders at approximately $2,000 per offender, he arrived at a rough total of $3 million, which could be used to offset the cost of the JASAP as portrayed by the fiscal note for HB 179. CHAIR ROKEBERG said that looked like a good response for a third offense but not for a first offense, which is a misdemeanor. REPRESENTATIVE BERKOWITZ asked whether a trial and a defense attorney would be required to take a PFD. MR. BUTTCANE said that what Representative Berkowitz is proposing makes sense to an adult offender, but to a 14-year- old, "they totally don't get it." The PFD is invisible money. Most 14- and 15-year-olds don't actually get the PFD; their parents take that money and put it somewhere. The kids might get $100, but the rest of it is in the college fund or being used for other purposes. The 14-year-old is not thinking in terms of cause and effect so as to be able to make a choice in his/her behavior whether to have a beer that day and then possibly lose the PFD next October. The cognitive developmental processes of adolescents are such that they just don't think that way; therefore, imposing the loss of a PFD as a sanction will be lost on them. The driver's license is tangible by comparison, and while the statistics show that "Use it, Lose It" had a minimal impact, it did have an impact, particularly when it was first implemented - there was a decrease in the number of incidents of minor consuming. Number 2142 MR. BUTTCANE, on the point of the $300 fine, noted that it is "almost nothing." In fact, when looking at what the court typically imposed in terms of fines, it was somewhere in the neighborhood of less than $100 for a first offense, and for third and subsequent offenses, the fines were averaging around $180; these fines did not provide "a hook." The hook that engaged kids was the loss of their driver's license; the requirement that they get involved in alcohol information and education, through some kind of screening process, in order to get their licenses back from DMV, was a piece of that hook. He noted that "we" still think that adolescent use of alcohol is a rite of passage, and "we" have to instill in this social consciousness the knowledge that there is now a "zero" tolerance for underage drinking. MR. BUTTCANE offered that the fine scheme in HB 179 is part of that, wherein "we" are elevating the seriousness with which adolescent use of alcohol is viewed. The $1,000 fine for a second offense is not "chump change," and if parents are required to participate in the process, then they are influenced into thinking that maybe underage drinking isn't a rite of passage that they want their children to go through. He noted that the graduated sanctions incorporated by HB 179 depend on a lot of little pieces; they depend on some accountability at the first drink, which is where JASAP comes in - where it is not a full-fledged probation sanction, but is an accountability- monitoring situation that will make sure the offenders are getting the information they need. A lot of these kids don't understand how the body metabolizes alcohol, but in an alcohol information school (AIS) they begin to learn; most offenders don't come back for a second offense. For the few that do come back a second time, the sanctions are increased - the offenders have to do more CWS and pay an incredibly large fine, all of which goes toward sending the message that "we" do not tolerate underage drinking in this state. MR. BUTTCANE explained that a third-time offender is probably a kid that is "dependent" or alcoholic. Thus a whole different approach needs to be taken such as mandatory treatment, higher levels of accountability and supervision, and engaging the family. The reason the delinquency system is put into play on the third offense is that now these are not simply kids who are making stupid choices; these are kids who are exhibiting levels of dysfunction that need intrusive intervention via the delinquency system. He surmised that under the scheme encompassed in HB 179, if an 18-year-old is hit with a $1,000 fine for a second offense, that person is going to be thinking that he/she can't afford this [behavior]. Number 2294 REPRESENTATIVE JAMES asked if there are statistics showing how many second-time offenders do not become third-time offenders. She opined that if a juvenile has committed a second offense, then he/she will probably go on to commit a third offense. MR. BUTTCANE noted that those statistics are available, and that according to his recollection, approximately 70 percent of juveniles with court convictions for minor consuming of alcohol do not have a second offense. He also noted that these statistics are different from the DMV statistics, which are tied to loss of licenses and which involve cases that may or may not have been in court. MR. JONES added that the DHSS fiscal notes include a replication of the DMV statistics to which Mr. Buttcane alluded. He noted, however, that these charts do not include data for calendar year 1999, but do include data for calendar years 1995 (the start of the "Use It, Lose It" law), 1996, 1997, 1998, and 2000. He detailed that for 2000 there were approximately 2,200 first-time offenders, close to 940 second-time offenders, and 1,048 third- time offenders. With regard to the third-time offenders, he confirmed that their previous offenses could have occurred in a prior year, but the chart is simply showing that these offenders lost their license for a third time due to a third offense that occurred in 2000. MR. GUANELI added that there is a long "look-back" provision for these types of offenses; a person could have gotten his/her first offense at the age of 14 and then the subsequent offenses could have occurred years later. Number 2416 REPRESENTATIVE JAMES, after looking at the aforementioned chart and acknowledging that there is probably not any way to determine if these were the same offenders, said it appears that juveniles who commit a second offense go on to commit a third offense. And with this in mind, she again suggested that the referral to the JJS come at the second offense, rather than waiting until the third. MR. BUTTCANE explained that [the DHSS] has been able to take the data for court convictions of minor consuming alcohol and separate out individual youth without duplicating the count. In the total time period from 1995 to 2000, there were 11,000 individuals who were 18 or older on January 1, 2001. Of those, 7,800 had one minor consuming alcohol offense within that five- year period. Within that five-year period, 1,744 of the 7,800 had a second offense, and 1,427 had a third offense. These figures illustrate that there is just a little bit of a reduction between second-time and third-time offenders; the rate of recidivism is quite high within this group of 18- through 20- year-olds. REPRESENTATIVE JAMES stated that Mr. Buttcane was making her point. MR. BUTTCANE brought up the point that the statistics show a different picture for those offenders under 18 years old. In this same five-year period, 1,749 kids were 17 or under as of January 1, 2001. TAPE 01-50, SIDE B Number 2499 MR. BUTTCANE continued by saying that amongst this 17-and-under age group within this five-year period, there were 1,388 first- time offenders; of these offenders, only 200 committed a second offense, and only 145 committed a third offense. He noted that when looking at this delinquency population, 145 is a significant decrease from 1,388. REPRESENTATIVE JAMES countered that the older a person gets, the more exposure there is to alcohol, and thus the greater the likelihood of getting caught. MR. BUTTCANE argued, however, that what is missing here is the requirement to start addressing an alcohol dependency, which is what the whole scheme in HB 179 does: it increases treatment capacity for underage drinking, not just for 17-year-olds, but also for the 19- and 20-year-olds, so that, hopefully, the kids start getting treatment earlier, which is the role that JASAP plays. REPRESENTATIVE JAMES noted that her concern is not with regard to the JASAP; it is, instead, with waiting until the third offense to get serious. MR. BUTTCANE remarked that there is no need to resort to the most expensive processes any sooner than is really necessary, given the circumstances. If second-time offenders are sent through the JJS, the need for more juvenile probation officers and associated costs increases, as opposed to a JASAP person who will still be able to sort some of the kids out without resorting to the "sledge hammer" to solve their problems. This is why the JJS is being reserved for the third offense; these kids really are demonstrating dependency issues - they need serious intervention - and the JJS can help with the associated problems such as dysfunctional families and educational issues. Number 2410 REPRESENTATIVE JAMES, with regard to the younger offenders, remarked that she was not convinced it is so much a dependency problem rather than a behavior problem. CHAIR ROKEBERG agreed with Representative James, and said his belief that the majority of offenders do not have a dependency problem is the primary reason he is reluctant to have first- and second-time offenders receive treatment. He did, however, acknowledge that there are some offenders who do have dependency problems, and it is, therefore, important to identify those kids and intervene with treatment. MR. BUTTCANE cautioned against losing sight of the fact that out of [1,388] kids, 145 of them continue to drink in a manner far different from the drinking behavior of an ordinary kid. MR. JONES, on the point of whether the JASAP screening would "pick up" on that type of offender, said that a requirement of screening is to look at an offender's history - to interview the offender and his/her parents - and, therefore, that type of determination could be made. He reminded the committee that the JASAP would not involve treatment, and that most first-time offenders would not go to treatment; they would simply attend AIS, which in most instances will be sufficient. Only a few first-time offenders would need further review. CHAIR ROKEBERG remarked that while that may be the case, he did not think it was money well spent in terms of "what we would pick up there." He agreed that there should be an education component for first-time offenders, but he said he is concerned about spending the money on formal screening and evaluation for the first offense. Number 2272 ERNIE TURNER, Director, Division of Alcoholism & Drug Abuse, Department of Health & Social Services (DHSS), said that he really liked the concept of graduated sanctions. The "Use It, Lose It" law applied to adolescents in the urban areas of the state, but most of the kids in rural Alaska could not have cared less whether they lost their licenses. He did note, however, that when some of the youth moved from the rural areas to Fairbanks to attend college, they participated in the Fairbanks Alcohol Safety Action Program (FASAP) minor consuming/possession pilot program in order to get their licenses back. MR. TURNER relayed that the number of adolescents who get caught is far fewer than the number who are actually using [alcohol and/or other substances]. Surveys show that there up to 55 percent of adolescents between the ages of 12 and 15 are using alcohol and/or other substances. So, while the discussion today centers around the adolescents who are caught, it is not the true number, he added. National statistics show that there are 1.1 million adolescents between the ages of 12 and 15 who have been assessed as being dependent on alcohol and/or other substances. He said he is excited about HB 179 because the sooner "we get to them, the easier it is to treat them." He noted that there are statistics that show if a person can be delayed or prevented from drinking until the age of 21, as compared with someone starting at the age of 14, there is a 75 percent greater chance that this person won't become dependent on alcohol. CHAIR ROKEBERG said that he agreed with Mr. Turner's remarks, but he reiterated his concerns about the effectiveness and costs of instituting a JASAP for first-time offenders. He again said that he was in favor of mandating alcohol education for first- time offenders, however. MR. TURNER reminded the committee that the cost of the alcohol information school (AIS) will be paid for by the client (or client's family), so the only additional cost will be that which is generated by clients who are referred to the JASAP. CHAIR ROKEBERG remarked that the fiscal note for the pilot JASAP proposed in HB 179 is $1.5 million. Number 2079 REPRESENTATIVE MEYER remarked that even if some of the lower fines don't have any impact on the kids, any funds received via those fines could go towards offsetting the fiscal note and could help fund the various programs being discussed. He mentioned that he disagreed in some ways with Chair Rokeberg with regard to [the effectiveness of] treatment and education [for first-time offenders]. He relayed that during his adolescence in Nebraska, the penalties for a first offense were a joke, and the only thing anybody learned was to be more careful the next time so as not to get caught. He opined that had the eight-hour AIS been a requirement back when he was growing up, it would have deterred some people from continuing to drink. As it was, the only thing that had any deterrent effect was for an offender to have his/her name listed in the paper, which has since been ruled unconstitutional. He suggested that some sort of fine should be required for a first offense. CHAIR ROKEBERG clarified that he did support education and fines for first-time offenders, but he again reiterated that he had concerns about having the JASAP and mandated treatment for first offenses, and even for second offenses, for that matter. REPRESENTATIVE JAMES said that what she found to be missing in this issue is parental involvement. She said that she did not feel that "we" as a government or "we" as a society are totally responsible for these kids. There will never be enough money, programs, or people working in this field to solve these youth- related alcohol/substance-abuse problems. She stressed that the parents must become involved in this issue, and that the onus should be placed on them to "make this happen." CHAIR ROKEBERG commented that taking an offender's PFD would certainly get the parents involved. He noted that there was a forthcoming amendment that would take into consideration the financial resources of the defendant's parents when determining eligibility for court-appointed counsel. REPRESENTATIVE COGHILL added that language in Amendment 1 [as well as in HB 179] mandates parental involvement with regard to an informal adjustment. Number 1931 REPRESENTATIVE JAMES emphasized that she was not opposed to taking a person's PFD to pay an established debt, but she was not in favor of taking a person's PFD simply as a punitive measure. MR. TURNER noted that a large portion of clients between the ages of 18 and 21 use the PFD to pay for their outpatient treatment; they assign their PFD directly to the agency. CHAIR ROKEBERG, with regard to the costs incurred by the offender, remarked that if there is a JASAP instituted, there is a JASAP fee; there is a fee for the AIS; there is a fee for treatment; and then there are also fines. And on the issue of confiscating the PFD, he noted there is still the question of whether this money would go directly towards reimbursing these programs or would go directly into the general fund (GF). REPRESENTATIVE BERKOWITZ said since one of the goals with HB 179 is to create a didactic affect, if the legislature sends the message, "If you drink, inappropriately, you lose your dividend," that's a pretty profound statement. He surmised that the courts will sort out the financial aspect so that fines will be adjusted to offset costs, and the like. He suggested that the message from the legislature should be clear: "We view the dividend as semi-sacred, but we think the problems of drinking are so profound in this state that we're willing to take dividends as a deterrent against drinking." REPRESENTATIVE JAMES asked where the money from confiscated dividends goes, adding that she is not in favor of having this money go to the GF. MR. JONES explained that currently, when people are not eligible for a PFD due to being incarcerated as a felon [or a third-time offender] during the eligibility year, the Department of Corrections (DOC) notifies the Department of Revenue (DOR), and that money is placed in a pool; that money can then be used by the DOL and the Department of Public Safety (DPS) for specific programs. However, alcohol-and-drug-abuse-treatment programs are not included as programs for which that pool can be used. REPRESENTATIVE JAMES commented that there should be a nexus between confiscating the PFD and paying for [treatment programs]; the PFD should not just simply be confiscated and placed into the GF. CHAIR ROKEBERG mentioned that the process by which the pool is allocated would have to be amended in order to channel those funds specifically into treatment, and that runs the risk of constitutionality problems. Number 1709 CANDACE BROWER, Program Coordinator/Legislative Liaison, Office of the Commissioner, Department of Corrections (DOC), on the topics of SB 105 and confiscation of an offender's PFD, said that SB 105 proposes to expand the pool of PFD-withholding to include misdemeanant offenders who have a prior felony conviction. According to her understanding, that money goes into a pool, which goes into the GF, and then at the end of the budgetary year, that money is allocated to "crime victims' compensation," the Council on Domestic Violence and Sexual Assault (CDVSA), and some DOC programs. CHAIR ROKEBERG then surmised that should the pool allocation be amended via SB 105, and should either HB 179 or HB 4 include a PFD confiscation provision, the accompanying fiscal notes would then reflect incoming revenue to the GF. But he also acknowledged that the nexus would then be lost, and thus there would be no guarantee that those funds would go toward the (J)ASAP, education, and treatment fees. For this reason, he suggested that it would be better to leave decisions regarding [fines, fees, and fund sources] to the discretion of the courts. He also suggested that the legislature should simply keep these issues in mind when setting the levels of the fines. REPRESENTATIVE BERKOWITZ said he understood the argument that money and PFDs are fungible, but there is a very different message relayed by saying "we're" taking "your" dividend. People think of fines as just money, while taking a PFD has a more profound meaning, he added, and even with youth who do not normally see their dividends, their parents will help "bring the gavel down upon the kids." MS. BROWER, with regard to the PFD, offered that what happens in rural Alaska, as opposed to urban Alaska, is very different because a lot of families in Bush Alaska are dependent on PFDs for heat and survival; there are not a lot of jobs in the rural areas and money is not flowing heavily. Another issue she brought up is that of grandchildren being raised by elders who may not be able to control those kids. And although she acknowledged that intervention, treatment, and education can be helpful in those situations, she did not know that taking a person's dividend away would fix the problem. REPRESENTATIVE BERKOWITZ argued that the legislature is operating under the premise that they are deterring a number of people from drinking, and that they are helping people get their lives in order. In essence, he suggested that what the legislature is saying is that if they are successful in deterring people from drinking, those people are making a down payment with one or two years' worth of dividends in order to save themselves from the costs of a lifetime of drinking; notwithstanding the differences between urban and rural Alaska, in the long run he suggested that those people will come out ahead, fiscally. Number 1433 ALVIA "STEVE" DUNNAGAN, Lieutenant, Division of Alaska State Troopers, Department of Public Safety (DPS), testified via teleconference and said that the DPS has submitted a zero fiscal note and a bill analysis in support of HB 179. He acknowledged that the "Use It, Lose It" law was effective for a time, but from an enforcement standpoint, the effects began to wear off over time and kids began to drink and have parties again. He posited that HB 179, as currently drafted with the "stair-step" penalties, is probably the best way at this point to approach the problem [of underage drinking]. He added that from an enforcement standpoint, HB 179 will not affect the DPS; the DPS hopes that some measure encompassed in HB 179 will take effect and deter underage drinking. LIEUTENANT DUNNAGAN went on to say that he thinks the "stair- step" and the larger fines will act as deterrents, especially if, upon passage, there is information put out to the public detailing the state's new position on minor consumption. He added that he thinks these provisions will have more of an effect on parents than "Use It, Lose It" did because, he surmised, some parents viewed the loss of an adolescent's driver's license as an answer to a prayer, particularly since it was the result of the state's mandate rather than their own mandate. He also surmised that the CWS provision will act as a deterrent since "kids out there have a lot better things to do, according to them, than help out in their communities." Number 1296 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency (PDA), Department of Administration, testified via teleconference and said that although [the PDA] has not really had an opportunity to try treatment through the [F]ASAP, previous testimony was encouraging. He agreed with Mr. Buttcane with regard to deterrence; having to spend a Saturday at an alcohol education class and having to go through assessments and screening processes is something that gets the attention of younger people and also helps prevent early-onset alcohol dependence, which is a tremendous problem. He surmised that the increase in youthful offenders is not so much because "Use It, Lose It" hasn't worked, but because the concept of community policing has become more prominent and enforcement has increased. MR. McCUNE, on the point of [mandated] CWS requiring jury trials and public defenders, said the Booth case is cited, and accounted for, in [the PDA's] fiscal note. He also said that [the PDA] believes in the "clean slate" concept discussed by Mr. Guaneli, and, therefore, third-time offenders are not accounted for in the fiscal note for the first period of time that HB 179 would be in effect, should it pass. To explain [the PDA's] belief in the clean slate concept, Mr. McCune stated that one clear way to collaterally attack a prior conviction, in the context of a current case, is if the prior conviction was an "uncounseled" conviction (Gideon v. Wainwright) whereby the offender did not have the right to an attorney or was not advised of that right. He added that most of the prior convictions [the PDA] deals with are criminal convictions; he does know of any current state law that says a prior violation can be used as an element to enhance a misdemeanor offense. He noted that a first offense under HB 179 would be an uncounseled case; although it is only a violation and as such does not really carry a right to counsel, it is still an element of the misdemeanor offense. This adds a level of complexity to the situation, and there might be some legal challenges to using violations as elements to enhance a misdemeanor, he suggested. MR. McCUNE said the PDA thinks that a program such as the JASAP would be effective and would work better than putting kids through the misdemeanor-type criminal process. On the issue of parental involvement, he referred to AS 47.12.030(b) and said that this is the provision currently in HB 179 regarding the third offense. When a child under 18 commits an offense such as a traffic offense, a fish and game offense, or a Title 4 minor in possession offense - which are not covered by the [statutes regarding] juvenile offenses - the statutes say that the minor's parent, guardian, or legal custodian shall be present at all proceedings. Thus, currently, the parents are legally required to be in court with a child who is charged with minor consuming. Number 0905 MR. McCUNE, on the topic of fines, noted that an old law - stemming from a 1972 case (City of Fairbanks v. Baker) - said that if more than a $300 fine is going to be imposed, it triggers the right to a jury trial and court-appointed counsel for those who cannot afford their own counsel. [The PDA] believes that because of inflation and so on, the courts would not object if higher types of fines - in the range of $600 to $1,000 - were imposed. [The PDA] also believes that the approach to take is to make the JASAP mandatory, to couple that with ensuring that the courts have the ability to put fines on these violations, and to keep these offenses at the violation level. MR. McCUNE, in response to questions, said that if the provision mandating CWS for a first offense is removed from HB 179, the PDA's fiscal note would be reduced, although he was not yet sure by how much. He mentioned that he had been very conservative in calculating the PDA's current fiscal note: he had estimated that [only 30 percent] of the total number of projected first- time offenders would request the PDA's services in response to the mandated CWS. CHAIR ROKEBERG alluded to perhaps removing CWS for a first offense in an attempt to lower the fiscal note. MR. GUANELI, on the topic of using violations to enhance misdemeanors, said that the idea of wiping the slate clean applies to offenses that were committed before the effective date of HB 179, but, he added, there is still the problem of how to stair-step from first offense to second offense to third offense. He explained that [the DOL] has determined that there is a way to overcome this problem resulting from wiping the slate clean, and he used the example of a crime called violating a domestic violence restraining order. When a person has a domestic violence restraining order issued against him or her, that person is given the status of domestic violence offender, even if he/she is not convicted of any crime, since the restraining order was probably entered based on a preponderance- of-evidence standard or might have even been an ex parte [proceeding]. Hence, when the offender violates the terms of that order, he/she then becomes guilty of the crime of violating a domestic violence restraining order. Number 0524 MR. GUANELI opined that if people who are convicted of violating provisions of HB 179 are given a certain status, they can then be considered status offenders for subsequent offenses. He envisioned it working thus: When a person commits a first offense and is then put on probation, and if a second offense is committed while on probation for the first, that person is then placed in the second-time offender category. In this way, [the DOL] believes that even if the first offense did not come with a right to a jury trial or right to counsel, as long as the offender is on probation for that offense - and has the status of probationer - then any further offense will place the offender in the higher offense category. He suggested this is a viable way to get around current Alaska case law. MR. GUANELI recommended further that a way to instill the idea that offenders may not drink until they become 21 is to place offenders on open-court, unsupervised, informal probation until they are 21. Then, when the offender reaches the age of 21, he/she is off probation. However, if the offender drinks again before getting off probation, then he/she is committing the crime of minor consuming while on probation for a prior offense, and hence is treated as a second-time offender as previously outlined. This method, he suggested, has the advantages of allowing "stair-stepping"; it tells the minor that he/she is in this status until the age of 21; and it allows the $600 fine for a first offense to be suspended. [The DOL] recommends the $600 fine be suspended as a way to encourage the offender to pay for the JASAP or education program, and also to hold something over the offender's head until he/she reaches the age of 21; if another offense is committed before then, the $600 will have to be paid, in addition to any fines imposed for the subsequent offense. REPRESENTATIVE BERKOWITZ opined that perhaps [the DOL] had not gone far enough with this idea. He recommended that rather than having the first offense be a violation - using the DV-order analogy - [the offender] could be subject to a court order for the first offense. In this way, any subsequent offense would be considered the first offense but it would be the offense of violating a "no drinking" (ND) order. If the analogy with the DV-order is an appropriate analogy, he continued, then an underage individual caught drinking could be brought before a judge who would issue, in essence, a ND order that would also include things like a JASAP assessment and compliance with that assessment. Failure to comply with the JASAP assessment or failure to not drink would then subject the juvenile to the criminal penalties associated with what is currently being termed the second offense. He surmised that in this way, if it is true that nearly 70 percent of first-time offenders do not re-offend after the first court contact, then the need for the first proceeding to be criminal can be eliminated, and it would still allow what is now considered the second offense, "to fit in." Number 0155 MR. GUANELI, in response to this suggestion, said it would work with the exception of imposing a fine; thus the additional incentive of the fine, as proposed via Amendment 1, drops out. He opined that it is important to provide some form of monetary incentive to minors who are going to be told that they have to pay for their alcohol screening and education. For example, "You either pay $100 to go to this class or you pay $600 to the judge," he said. Even 15-year-olds can understand the economics of this choice, he surmised, and thus will opt for the AIS. He expressed reluctance to lose that incentive via Representative Berkowitz's suggestion. He then reminded the committee that the current fine for a first offense is up to $300, but current practice seems to be to impose a fine of $50 or $75. CHAIR ROKEBERG called this current practice a "hand slap," which is not catching "their" attention. REPRESENTATIVE BERKOWITZ suggested that any additional moneys could be made up by assessing court costs. MR. GUANELI commented that he would have to think further on that aspect of the suggestion. TAPE 01-51, SIDE A Number 0001 REPRESENTATIVE BERKOWITZ said he did not think [that his suggestion] would trespass on the same constitutional ground as "stair-stepping," which he sees as being extremely problematic; if there is a second offense, then the juvenile would be subject to a violation of a court order, as well as whatever happens with the second offense. And with that violation of a court order, some other penalties do attach in the same way that penalties attach for violations of a DV order. CHAIR ROKEBERG, in summary, noted that Amendment 1 was what the administration had originally recommended as HB 179, but this was changed to reflect an increase in fines and CWS, and a lowering of some of the treatment elements. Since then, information was brought forward indicating that mandatory CWS would still trigger a requirement for a jury trial and for counsel. He added, however, that if the CWS is simply given as an option by the judge, a jury trial and counsel would not be required even if CWS is what the offender opted for. He also noted that Mr. Wooliver [of the Alaska Court System] had estimated that 1 percent of misdemeanant offenders would go to trial, and that another study had an estimate of 3.7 percent. MR. McCUNE clarified that [the PDA] has to do more work on its cases regardless of whether the cases go to trial; [the PDA] has to meet with the defendant and discuss the case, and generally also has to meet with family members who are understandably upset. Therefore, unlike other state agencies and the court system, [the PDA] does not make fiscal calculations based on the number of trials; instead, it bases its calculations on the number of cases. CHAIR ROKEBERG suggested that the committee develop a committee substitute - via the adoption today of Amendment 1 and any other amendments currently available to the committee - with the intention of bringing it back before the committee for further review and possibly further amendments. Number 0425 REPRESENTATIVE COGHILL made a motion to adopt Amendment 1. [Amendment 1 is provided with original punctuation at the end of the minutes on HB 179.] There being no objections, Amendment 1 was adopted. Number 0445 CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 2, which "removes the screening and treatment from the first offense, but leaves the education as a mandate." Number 0475 REPRESENTATIVE BERKOWITZ objected. Number 0485 ELMER LINDSTROM, Special Assistant, Office of the Commissioner, Department of Health and Social Services (DHSS), suggested that there is still a misunderstanding on this point. He pointed out that [the DHSS] has a series of three fiscal notes, with the largest one reflecting the treatment element. He assured the committee that not one penny of those treatment dollars is associated with the first-time offender; the first-time offender will receive nothing but a referral to an AIS. CHAIR ROKEBERG warned that this is not a sufficient argument against Conceptual Amendment 2. He clarified that his intention is to provide for mandatory education while deleting the ASAP provision for first-time offenders. REPRESENTATIVE BERKOWITZ commented that for most offenders who get caught up in the system, once is enough; they get the point. He argued that the assessment provision is critical in trying to "put the net out to see who we're catching." He suggested that about 10 percent of offenders - even the younger juveniles - have some real [alcohol-related] problems; if those offenders can be caught early, the state will be saving costs down the road. He also suggested letting the House Finance Committee worry about "the numbers," while the House Judiciary Standing Committee focuses on creating the right policy. CHAIR ROKEBERG commented that he thinks the AIS is essential for first-time offenders because this, coupled with the fines, is what will get the kid's attention. He expressed the concern, however, that people who go through the ASAP will be assessed as needing treatment even after "they have one Budweiser." MR. LINDSTROM explained that for the person just described, the ASAP will only be determining whether the AIS is the most appropriate course of action, and then reporting back to court whether this step was taken by the offender. CHAIR ROKEBERG stated, "We don't need that bureaucrat in that transaction." MR. LINDSTROM reminded the committee that if the clean-slate concept is instituted, then, for a period of time, a significant number of people coming in as first-time offenders might really be second-, third-, fifth-, tenth-, or twelfth-time offenders; as such, through a formal screening process, they may well be assessed as needing some form of treatment. He suggested that is a significant hole in the first-time-offender scheme. He also suggested that there is still a misperception regarding the role of the JASAP. Number 0732 REPRESENTATIVE MEYER pointed out that according to the chart detailing the administration's proposal, offenders will have to pay for screening and any education or treatment. He surmised that if this is the case, there is no additional cost. CHAIR ROKEBERG remarked that for those who cannot afford it, the costs of screening and education/treatment will be picked up by the state. REPRESENTATIVE MEYER suggested that if a fine is reinstated for a first offense, in the long run "it'll be a wash." He added that he did not think a $300 fine would require a jury trial. MR. BUTTCANE, as an argument in favor of screening for first- time offenders, posed a scenario in which 1,300 adolescents are asked, "Do you black out when you drink?" While all but 145 will say "No," those 145 are more likely to respond, "Well, yes, doesn't everyone?" Hence, during screening, specific groups of kids will be found that have the disease [of alcoholism] - they drink differently and they respond differently to the chemical substance alcohol, even with the first drink. Accordingly, the appropriate assessment can be performed at an early stage so that perhaps the second offense can be avoided altogether. He opined that great savings occur "down the road" by helping these kids who have this "allergy" to alcohol, this biological/physiological difference, get into treatment at the first offense. CHAIR ROKEBERG suggested that the fee for the JASAP should be raised to a minimum of $150. MR. JONES noted that this increase could be done via regulation. He estimated that for those people who show up in publicly funded programs, the collection rate for the ASAP fees would probably remain at approximately 40-45 percent. REPRESENTATIVE BERKOWITZ, with regard to the question of whether to institute a minimum fine for a first offense, said that he would like to explore other alternatives because he considers the "stair-step" to be incredibly problematic from a constitutional perspective. He again suggested instituting a system using a "no drinking" order, similar to a DV order, whereby all the penalties would attach upon violation of that order. CHAIR ROKEBERG, on additional points to consider, asked the committee to decide whether to institute a JASAP pilot program. REPRESENTATIVE BERKOWITZ also suggested that more research should be done with regard to the consequences of taking a person's PFD. CHAIR ROKEBERG noted that he would consider the suggestion of taking a person's PFD at the third offense if the amount didn't exceed the class-A-misdemeanor parameters. He recommended that Representative Berkowitz's research should include a look at how to "get past the pooling effect of the GF." REPRESENTATIVE BERKOWITZ, on the point of whether to adopt Conceptual Amendment 2, which would remove the screening and treatment for a first offense but still mandate education, maintained his objection. Number 1275 A roll call vote was taken. Representatives Coghill, James, and Rokeberg voted for Conceptual Amendment 2. Representatives Meyer and Berkowitz voted against it. Therefore, Conceptual Amendment 2 passed by a vote of 3-2. Number 1287 CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 3, which read [original punctuation provided]: Add a new subsection to AS 04.16.050 stating: When considering the financial resources of a minor for purposes of determining the eligibility for court- appointed counsel, the court shall consider the resources of both the defendant and the defendant's parents, unless the court finds good cause to treat their resources as being unavailable to the defendant. CHAIR ROKEBERG added that this concept is already part of the district court rules. He asked whether there were objections to Conceptual Amendment 3. There being no objection, Conceptual Amendment 3 was adopted. [HB 179 was held over.] AMENDMENTS The following amendment to HB 179 was discussed and adopted during the hearing. [Shorter amendments are provided in the main text only.] Amendment 1 (adopted) [original punctuation provided]: Delete Section 1 and replace with: *Section 1. AS 04.16.050(b) is amended to read: (b) A person who violates (a) of this section and who has not been previously convicted is guilty of minor consuming or in possession or control [A VIOLATION]. Upon conviction in the district court, the court shall [MAY] impose a fine of $600 [NOT LESS THAN $100]. The court shall suspend the full amount of the fine, and place the person on probation under (e) of this section. Delete Section 2 and replace with: *Sec. 2. AS 04.16.050 is amended by adding new subsections to read: (c) A person is guilty of repeat minor consuming or in possession or control if the person is on probation under (b) of this section or has been previously convicted, and the person violates (a) of this section. Upon conviction in the district court, the court shall impose a fine of $1000 and at least 48 hours of community work service. The court shall suspend a portion of the fine up to $500, and place the person on probation under (e) of this section. (d) A person is guilty of habitual minor consuming or in possession or control if the person is on probation under (c) of this section or this subsection, or has been twice previously convicted, and the person violates (a) of this section. Habitual minor consuming or in possession or control is a class B misdemeanor. Upon conviction, the court may impose an appropriate period of imprisonment and fine and place the person on probation under (e) of this section, and shall (1) impose at least 96 hours of community work service; (2) revoke the person's privilege to drive for six months, and by the end of the next business day shall notify the division of motor vehicles of the revocation; and (3) take possession of any driver's license or permit. (e) A person sentenced under (b), (c) or (d) of this section shall be placed on probation for one year, or until the person turns 21, whichever is later. The conditions of probation are: (1) that the person pay for and enroll in a juvenile alcohol safety action program; (2) that the person pay for and successfully complete any education or treatment recommended; (3) that the person not consume inhalants, or possess or consume controlled substances or alcoholic beverages, except as provided in AS 04.16.051(b); (4) that the person timely complete any community work service ordered, as provided in (f) of this section; and (5) any other condition the court considers appropriate. (f) Community work service ordered under this section must be performed within 120 days of the entry of judgment for a conviction. The court may expand the time period for up to 30 days upon a showing of good cause. The person shall submit verification of completion of community work service to the clerk of court on a form provided by the court. If the verification is not provided within the time period required by this subsection, within 30 days the court shall schedule further proceedings in the case to determine whether a violation of probation has occurred. (g) The treatment recommended by a juvenile alcohol safety action program under (b), (c) or (d) of this section may include a period of inpatient treatment if the judgment specifies the maximum period of inpatient treatment authorized. A person who has been recommended for inpatient treatment may make a written request to the sentencing court for review of the referral. The request for review shall be made within seven days of the recommendation, and shall specifically set out the grounds upon which the request for review is based. The court may order a hearing on the request for review. (h) The juvenile alcohol safety action program to which a person is referred under this section shall inform the court or a minor's juvenile probation officer if the person fails to submit to evaluation or fails to successfully complete any education or treatment recommended. If the court finds that the person has failed to perform community work service as ordered, or has failed to submit to evaluation or successfully complete the education or treatment recommended, the court shall impose the suspended fine and may impose any period of suspended incarceration. If the person was convicted of repeat minor consuming or in possession under (c) of this section, the court shall also revoke the person's privilege to drive for six months, and shall take possession of any driver's license or permit. If the person was convicted of habitual minor consuming or in possession under (d) of this section, the sentencing court or juvenile court shall revoke the person's privilege to drive for an additional six months beyond the revocation under (d) of this section. A court revoking the privilege to drive under this subsection shall notify the division of motor vehicles. (i) In this section, (1) "juvenile alcohol safety action program," means (A) a juvenile alcohol safety action program developed and implemented or approved by the Department of Health and Social Services under AS 47.37; (B) any other alcohol education or treatment program approved by the Department of Health and Social Services under AS 47.37, if a program described in AS 04.16.050(g)(1) is not available in the community in which the person resides; or (C) a program or counseling approved by the court, if a program or treatment described in AS 04.16.050(g)(1)(A) or (B) is not available in the community where the person resides; (2) "previously convicted" means a conviction or an adjudication as a delinquent for a violation of AS 28.35.030, 28.35.032, AS 28.35.280 -- 28.35.290, AS 11.71, or a law or ordinance in another jurisdiction with substantially similar elements; (3) "privilege to drive" means a driver's license license [sic] or permit, or privilege to obtain a driver's license or permit. Delete Section 4 and replace with: * Sec. 4. AS 28.15 is amended by adding a new section to read: Sec. 28.15.176. Administrative revocation for minors who consume or possess alcohol or drugs. (a) The department shall revoke the privilege to drive of a minor for (1) six months, when notified of an informal adjustment under AS 47.12.060(b)(4), and shall revoke the minor's privilege to drive for an additional six months when notified of an unsuccessful adjustment under that statute; (2)the time period specified in AS 28.15.185(b), when notified of an informal adjustment under AS 47.12.060(b)(5). (b) The department may not issue a new license or reissue a license to a person whose privilege to drive has been revoked under AS 04.16.050, AS 28.15.183 or AS 28.15.185 unless the person has enrolled in a juvenile alcohol safety action program and successfully completed any education or treatment recommended. (c) A revocation under AS 04.16.050 is consecutive to a revocation imposed under another provision of law, but is concurrent with a revocation under that statute based on a prior conviction, adjudication of delinquency or informal adjustment under AS 47.12.060. (d) Notwithstanding the provisions of AS 28.20.240 and 28.20.250, the department may not require proof of financial responsibility before restoring a person's privilege to drive under this section. (e) In this section, (1) "juvenile alcohol safety action program," has the meaning given in AS 04.16.050; (2) "privilege to drive" has the meaning given in AS 04.16.050; Delete Section 5 and replace with: *Sec. 5. AS 28.15.181 is amended by adding a new subsection to read: (i) A court convicting a person under AS 04.16.050(c) or (d) shall revoke the person's privilege to drive as provided in AS 04.16.050. As used in this subsection, "privilege to drive" has the meaning given in AS 04.16.050. Add a new Section: *Sec. ___. AS 28.15.183(g) is amended to read: (g) Except as provided under (h) of this section, the department may not issue a new license or reissue a license to a person whose driver's license, permit, or privilege to drive has been revoked under this section unless the person has enrolled in a juvenile alcohol safety action program, as defined in AS 04.16.050, and successfully completed any education or treatment recommended [IS ENROLLED IN AND IS IN COMPLIANCE WITH, OR HAS SUCCESSFULLY COMPLETED, (1) AN ALCOHOLISM EDUCATION OR REHABILITATION TREATMENT PROGRAM APPROVED UNDER AS 47.37, IF THE REVOCATION RESULTED FROM POSSESSION OR CONSUMPTION OF ALCOHOL IN VIOLATION OF AS 04.16.050 OR A MUNICIPAL ORDINANCE WITH SUBSTANTIALLY SIMILAR ELEMENTS, FROM] OPERATING A VEHICLE AFTER CONSUMING ALCOHOL IN VIOLATION OF AS 28.35.280, OR FROM REFUSAL TO SUBMIT TO A CHEMICAL TEST OF BREATH IN VIOLATION OF AS 28.35.285; OR (2) A DRUG EDUCATION OR REHABILITATION TREATMENT PROGRAM, IF THE REVOCATION RESULTED FROM POSSESSION OR USE OF A CONTROLLED SUBSTANCE IN VIOLATION OF AS 11.71 OR A MUNICIPAL ORDINANCE WITH SUBSTANTIALLY SIMILAR ELEMENTS]. Delete Section 13 and replace with *Sec. 13. AS 47.12.060(b) is amended to read: (b) When the department or an entity selected by it decides to make an informal adjustment of a matter under (a)(2) of this section, that informal adjustment (1) must be made with [MAY NOT BE MADE WITHOUT] the agreement or consent of the minor and the minor's parents or guardian to the terms and conditions of the adjustment;[.] (2) must give [IN ADDITION, THE DEPARTMENT OR ENTITY SHALL GIVE] the minor's foster parents an opportunity to be heard before the informal adjustment is made;[.] (3) must include notice that [AN] informal action to adjust a matter is not successfully completed unless, among other factors that the department or entity selected by it considers, as to the victim of the act of the minor that is the basis of the delinquency allegation, the minor pays restitution in the amount set by the department or the entity selected by it or agrees as a term or condition set by the department or the entity selected by it to pay the restitution; (4) for a violation of habitual minor consuming or in possession under AS 04.16.050(d), must include an agreement that the minor perform 96 hours of community work service and that the minor's privilege to drive be revoked for six months, as if the minor had been adjudicated delinquent, and that the privilege to drive be revoked for an additional six months if the informal adjustment is not successful because the minor has failed to perform community work service as ordered, or has failed to submit to evaluation or successfully complete the education or treatment recommended. The department or entity selected by it shall notify the division of motor vehicles of an informal adjustment under this paragraph, and of an unsuccessful adjustment described in this paragraph; (5) of an offense described in AS 28.15.185(a) must include an agreement that the minor's privilege to drive be revoked as provided in AS 28.15.185(b), as if the minor had been adjudicated delinquent. The department or entity selected by it shall notify the division of motor vehicles of an informal adjustment under this paragraph. Add a new section: *Sec. ___. AS 47.37.040 is amended by adding a new paragraphs to read: (20) develop and implement or designate, in cooperation with other state or local agencies, a juvenile alcohol safety action program that provides alcohol and substance abuse screening, referral, and monitoring of persons under 21 years of age who have been referred to it by a court in connection with a charge or conviction of a violation or misdemeanor related to the use of alcohol or a controlled substance, by the division of motor vehicles in connection with a license action related to the use of alcohol or a controlled substance, or the division of juvenile justice after a delinquency adjudication that is related to the use of alcohol or a controlled substance. [End of Amendment 1 to HB 179; HB 179 was held over.]
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