Legislature(2001 - 2002)
04/03/2001 11:25 AM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 4 - OMNIBUS DRUNK DRIVING AMENDMENTS Number 0024 CHAIR ROKEBERG announced that the first order of business would be HOUSE BILL NO. 4, "An Act relating to offenses involving operating a motor vehicle, aircraft, or watercraft while under the influence of an alcoholic beverage or controlled substance; relating to implied consent to take a chemical test; relating to registration of motor vehicles; relating to presumptions arising from the amount of alcohol in a person's breath or blood; and providing for an effective date." [Before the committee was CSHB 4(TRA), as amended.] Number 0041 CHAIR ROKEBERG made a motion to adopt the proposed committee substitute (CS) for HB 4, version 22-LS0046\B, Ford, 4/2/01, as a work draft. Number 0051 REPRESENTATIVE BERKOWITZ objected to ask if Version B incorporates all the previously adopted amendments. Number 0070 CHAIR ROKEBERG said yes, with the exception of [an inadvertently omitted portion] that is addressed by a new clarifying amendment from the drafter. Chair Rokeberg noted that there were no further objections. Therefore, Version B was before the committee as a work draft. Number 0100 CHAIR ROKEBERG made a motion to adopt Amendment 1 [22- LS0046\B.1, Ford, 4/3/01], which read: Page 17, lines 19 - 21: Delete all material and insert: "(4) the court shall, if the person has been previously convicted (A) order the motor vehicle, aircraft, or watercraft used in the commission of the offense forfeited under AS 28.35.036 or shall order the motor vehicle, aircraft, or watercraft taken to the owner's residence or property and immobilized for the period of time that the person's driver's license is revoked; the court shall also require the person to pay any administrative costs of keeping the motor vehicle, aircraft, or watercraft immobilized; and (B) two or more times, order the motor vehicle, aircraft, or watercraft used in the commission of the offense forfeited under AS 28.35.036." Page 26, lines 9 - 11: Delete all material and insert: "(4) the court shall, if the person has been previously convicted (A) order the motor vehicle, aircraft, or watercraft used in the commission of the offense forfeited under AS 28.35.036 or shall order the motor vehicle, aircraft, or watercraft taken to the owner's residence or property and immobilized for the period of time that the person's driver's license is revoked; the court shall also require the person to pay any administrative costs of keeping the motor vehicle, aircraft, or watercraft immobilized; and (B) two or more times, order the motor vehicle, aircraft, or watercraft used in the commission of the offense forfeited under AS 28.35.036; and" Number 0125 REPRESENTATIVE COGHILL objected for purposes of discussion. Number 0142 JANET SEITZ, Staff to Representative Rokeberg, Alaska State Legislature, explained that the concept in Amendment 1 previously had been contained in Amendment 36, but that the concept was deleted when [Version B] was prepared. Amendment 1 restores the deletion, saying in (4)(A) that on a second offense, forfeiture or impoundment of the vehicle shall be ordered by the court, and in (4)(B) that on the third or subsequent offense, the court shall order the vehicle's forfeiture. CHAIR ROKEBERG said he thinks that was the intention of the committee. MS. SEITZ said Amendment 1 amends both the driving under the influence (DUI) section and the refusal section [AS 28.35.030 and AS 28.35.032]. CHAIR ROKEBERG said the question is whether it is necessary to have the word "and" [after "immobilized;"] on lines 10 and 24 of Amendment 1. He said he thinks it should either be "disjunctive or deleted in its entirety; it's a matter of drafting style." Number 0231 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, said he thought Chair Rokeberg was correct: saying "and" is incorrect; beyond that, "whether it's nothing or whether it's 'or' amounts to the same thing." He offered that "or" would be clearer to most people. Number 0252 CHAIR ROKEBERG offered a conceptual amendment to Amendment 1 "to get it right" one way or the other. REPRESENTATIVE BERKOWITZ said he thought saying "or" was good. CHAIR ROKEBERG withdrew his conceptual amendment to Amendment 1. Number 0270 REPRESENTATIVE BERKOWITZ offered a new conceptual amendment to Amendment 1: On lines 10 and 24, delete "and" and insert "or". CHAIR ROKEBERG noted that there were no objections to the conceptual amendment to Amendment 1. Therefore, the conceptual amendment to Amendment 1 was adopted. REPRESENTATIVE BERKOWITZ, returning to Amendment 1, said: "We're still operating under mandatory forfeiture here." CHAIR ROKEBERG said yes, on the third offense. REPRESENTATIVE BERKOWITZ said he thought forfeiture was also mandatory on the second offense. CHAIR ROKEBERG said Amendment 1 allows for the discretion of the judge with regard to forfeiture. REPRESENTATIVE BERKOWITZ countered that the language says either they "shall" forfeit the vehicle or they "shall" immobilize it. CHAIR ROKEBERG confirmed that; he added that there is further provision for the co-owner or other owner to get a release. He then asked Ms. Seitz for confirmation. MS. SEITZ recalled, "We took those out, did we not, when we deleted the forfeiture program?" Number 0386 MARY MARSHBURN, Director, Department of Motor Vehicles, testified by teleconference. She said Ms. Seitz was correct - the [provisions for release to a co-owner or other owner] had been removed. REPRESENTATIVE BERKOWITZ requested more clarification about the provisions that allow the co-owner or [other owner] to release the vehicle. CHAIR ROKEBERG noted [that provisions for release to a co-owner or other owner] are in the bill with regard to licensing and the license plates, but not with regard to the immobilization. REPRESENTATIVE BERKOWITZ replied, "But not for the forfeiture." CHAIR ROKEBERG said he thinks [another owner] or co-owner is protected under the current forfeiture law. MS. SEITZ said that is only in the Municipality of Anchorage ordinance, not state statute. CHAIR ROKEBERG asked Mr. Guaneli if, in fact, adopting this amendment leaves the judge without a provision to allow a co- owner or other owner to obtain the automobile. MR. GUANELI opined that the courts always have discretion, and also have the duty to protect the interests of innocent owners. Noting that there is a difference between an innocent owner and a co-owner, he went on to say, "I think if the co-owner is an innocent owner, we cannot constitutionally take [away] their interest in a car or any piece of property." CHAIR ROKEBERG clarified that there had been provisions [for protecting the interests of innocent owners and co-owners], "but they may have been removed when we did not adopt the civil proceedings." He suggested the committee conclude the issue of Amendment 1 and then move on to the issue of [proposing] a conceptual amendment instructing the drafter to make sure that those provisions are included in HB 4, if not already covered under current statute. REPRESENTATIVE BERKOWITZ pointed out that under Title 4, there is language regarding forfeiture, and he said he thinks there is a fairly extensive description of how to proceed with the forfeiture in those cases. CHAIR ROKEBERG said there is, and that there is a default back to the criminal forfeiture. But "just in case," he added, they could have a conceptual amendment instructing the drafter to make certain that the interest of the innocent co-owner and the other owner can be preserved, even in an impoundment situation. Number 0610 CHAIR ROKEBERG remade the motion to adopt Amendment 1 [as amended]. There being no further objection, Amendment 1 [as amended] was adopted. Number 0656 CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 2: "Instructing the drafter - if need be - to make sure the provisions of the immobilization on the second offense and any forfeiture provides for the protection of an innocent co-owner or lien holder and so forth, [so] that those interests will be protected." There being no objection, Conceptual Amendment 2 was adopted. MR. GUANELI proposed a technical amendment. He directed attention to page 17, lines [9-10], and suggested that "except as provided under (1)(A)(i) of this subsection," be stricken, since it applied to the suspended imposition of sentence (SIS) provision related to the .08 diversion program, which has since been deleted. Number 0750 CHAIR ROKEBERG made a motion to adopt this suggestion as Conceptual Amendment 3. There being no objection, Conceptual Amendment 3 was adopted. MR. GUANELI then directed attention to page 24 [lines 7-9], Section 39, which is a provision that allows testing pursuant to a search warrant. The district attorney has told him that there is another situation that can arise when a person passes the breathalyzer tests and yet is obviously under the influence of something. In those circumstances, Mr. Guaneli thinks it is appropriate that the police be allowed to call a judge, describe the circumstances, and get authorization to test for substances other than alcohol. He proposed language for another technical amendment: on page 24, at the end of line 9, after "judicial officer" insert ", in addition to a test permitted by this section". MR. GUANELI explained that at least one judge in Juneau has said that if a person takes the breath test, there is no opportunity for further testing because the breath test is all that is permitted by statute, and "I think that additional language makes it clear that there are going to be rare circumstances where it is appropriate to do an additional test pursuant to a warrant." CHAIR ROKEBERG asked what the current procedure is, if a person appears to be under the influence of a controlled substance. Number 0903 MR. GUANELI said he thinks that in most areas in the state, police would need a warrant to test for a controlled substance. If circumstances are such that the person has to be taken to a hospital, the hospital is going to take some blood, which will show if the person is under the influence of a narcotic. But in those cases in which the person does not need to go to a hospital, the only thing authorities can do is to get a warrant. He said he thinks it is good that this section allows warrants, but since a judge has ruled that once you've used the breathalyzer machine, you can't do any further testing, he thinks it is important to include language that allows testing in addition to that specifically permitted by this section, because that is the only way police can get the needed evidence. REPRESENTATIVE BERKOWITZ said he was curious as to what the judge's ruling was - here in Juneau - and how judges have ruled in other parts of the state. He voiced reluctance to pass a law based on a single anecdote. MR. GUANELI said the basis for the judge's ruling was, "The implied consent statute is here, and that tells you what tests you can use, and you can't use anything more." He said he did not know how judges have ruled in other parts of the state, but he didn't think it did any harm to add that clause. CHAIR ROKEBERG added, "And logically because the test is permitted in the section." REPRESENTATIVE BERKOWITZ argued: If the other protection[s] of the search warrants are in place, which they necessarily would be, then this would be unnecessary to add. It seems to me that in seeking a warrant to draw blood, you're seeking that warrant in order to obtain evidence. Is that correct? And there's provision under a search warrant procedure to do that now. MR. GUANELI replied, "All I can tell you is that the position of the presiding judge in Juneau was that once you've used the breath test, you can't do any follow-up testing." REPRESENTATIVE BERKOWITZ asked if that is under appeal. MR. GUANELI said that strictly speaking, those kinds of decisions cannot be appealed. A petition can be lodged with the court of appeals, and then it's discretionary. He added that he did not know whether there was a petition lodged in that case. Number 1079 CHAIR ROKEBERG said it seems to him that it is the responsibility of the House Judiciary Standing Committee to make sure that the laws are applied evenly in all judicial districts of the state, notwithstanding a particular ruling, and that he thinks this "calls out for clarification." REPRESENTATIVE BERKOWITZ said it may or may not: What Mr. Guaneli is asking us to do is based on a single instance in Juneau, without knowing what the rulings have been in other parts of the state, without having let the judicial process run its course, for us to intercede. And I know how frustrated we get when the judges jump in before we're done doing our business. I think we ought to let the judges do their business and then if there's still a problem, take another look at it. CHAIR ROKEBERG asked how long this ruling has been in effect. MR. GUANELI said he did not know, but he could inquire of the district attorney. He added that his impression is that it is fairly recent because district attorney notified him only a few days ago. REPRESENTATIVE COGHILL posed the question of how many times multiple tests could occur. He also asked whether the ability to impose multiple tests could become a misused tool. Aside from the goal of catching wrongdoers, there is also the potential to use this sort of thing to intimidate people, he added. MR. GUANELI responded that the kind of evidence that comes from these tests is evidence that dissipates over a period of time, and therefore the testing needs to occur fairly quickly. He opined that this is one factor that will limit the potential for harassment. He added that a single blood test is useful to screen for a number of substances, so, as a practical matter, there is no need to impose further testing. REPRESENTATIVE COGHILL noted that sometimes people may have substances in their blood that do not cause impairment at the time that the blood test is taken. He asked if [law enforcement] is going to start looking for those types of things. Number 1264 MR. GUANELI acknowledged that the kinds of residual amounts of drugs that can remain in the system might very well show up on a test, but they would show up as background amounts, which would not intoxicate somebody, and [law enforcement] is really looking for higher levels of drugs in order to bring forth a case. He added that many steps have to be taken to prosecute a [DUI] case involving controlled substances. Not only does the blood test have to be taken, but an expert witness must be called in to interpret the results of that test; in addition, there has to be evidence that links the blood test result with someone's driving such as an officer's testimony regarding how the defendant was actually driving at the time of arrest. REPRESENTATIVE JAMES noted that Mr. Guaneli has finally mentioned the fact that the reason the person is arrested in the first place is because he/she had done something to indicate a lack of control. Based on this assumption, if the breathalyzer did not indicate a blood alcohol concentration (BAC) level of .08, she said that [law enforcement] would still have to make the presentation before a judge that the person was showing signs of some other influence in order to get a search warrant to perform a blood test. MR. GUANELI agreed. He also noted that certain physical indicators coupled with erratic driving behavior fall under the probable cause standard. REPRESENTATIVE BERKOWITZ asked whether a person found to have a controlled substance in his/her bloodstream could be charged with possession based on the presence of the substance in the bloodstream. MR. GUANELI confirmed that this is possible, as long as there is also further evidence present to indicate how the substance got in the person's blood, such as syringes or other paraphernalia. He added that case law says that the mere fact of having a controlled substance in the bloodstream is not sufficient for prosecution of a possession charge. Number 1453 REPRESENTATIVE BERKOWITZ noted that there is also the possibility that people who "blow under a .08" and yet have demonstrated signs of impairment might, indeed, not have any other substances in their bloodstream; they might be ill or they might have been adjusting a radio. He asked at what point "we" tell law enforcement that they cannot pursue a case any further. MR. GUANELI responded that there is a lot of training that goes into being a law enforcement officer, particularly surrounding issues of DUI. He opined that most officers have seen an awful lot if they have been on road patrol for even a short period of time; at some point it has to be left to the officer's discretion to be able to determine whether someone is simply sleepy, sick, or suffering from a sprained ankle. He added that "we" rely on the officer's discretion in applying for any other type of search warrant in any other type of case, and that it is appropriate to rely on the officer's discretion in DUI cases as well. REPRESENTATIVE JAMES brought up the point that there are a lot of prescribed medications that specifically instruct people not to consume alcohol while taking the medication, and sometimes just a little alcohol will make a profound difference in the way the medication affects people. She opined that a person could make the argument that he/she is "not guilty of anything bad," but her response to such a defense is, "You've been told [to] not have alcohol with it, number one, and if you're not in condition to be driving a vehicle, then it is your problem." MR. GUANELI agreed. REPRESENTATIVE BERKOWITZ commented that the [suggested change in language] is trying to fix a problem before knowing that the problem really truly exists - whether there is some kind of judicial impediment to obtaining these kinds of warrants. He also said that this language change is being proposed without the kind of full and fair evidentiary hearing that would normally, at least in a judicial context, accompany a constitutional question. "We're doing it without, to this point, hearing from folks who might have an opposing viewpoint, and I'm very uncomfortable tinkering with the Fourth Amendment in this way," he added. Number 1623 CHAIR ROKEBERG said that although he appreciated this point, he values the credibility of Mr. Guaneli. Chair Rokeberg also said that he is not as concerned about the constitutionality issue, given that the [blood] tests are already provided for in this section [of Version B]. He surmised that they were simply discussing the methodology since the tests are already provided for. REPRESENTATIVE BERKOWITZ argued that the basis for denying the warrant is that it would be considered an unreasonable search - an unreasonable seizure. CHAIR ROKEBERG clarified that this point is not raised by Mr. Guaneli's suggested change to the language. MR. GUANELI confirmed this interpretation. He said that this suggested change is based on statutory construction; there are courts that are taking the implied consent law - the law that allows for breath tests - and construing it in a limited way to preclude the administration of other types of tests, even pursuant to warrant. He opined that his suggested change to the language simply tells the court that it cannot construe the statute in this fashion because it is not what is intended by the legislature. REPRESENTATIVE BERKOWITZ argued that "we're construing this within the context of the Fourth Amendment; it's a warrant question." CHAIR ROKEBERG said he disagreed; it is a matter of the test methodology and the number of tests that are already authorized by statute that can be given, he added. REPRESENTATIVE JAMES said that they certainly were talking about the Fourth Amendment, but she also noted that they were discussing a judicial decision. She opined, "It's still discretionary, to the judge in this case, as to whether or not a search and seizure is allowed for this." She also opined that certainly the judiciary is going to be concerned about Fourth Amendment rights. REPRESENTATIVE BERKOWITZ offered that the suggested change in language would overturn - or take away - the judiciary's discretion on a case-by-case basis, and he noted that the committee has neither seen the Juneau court's decision nor investigated whether any other [judicial] districts have looked at the question and come up with the same ruling. CHAIR ROKEBERG said that in terms of intrastate judicial opinion, there has been enough discussion on the issue raised by Mr. Guaneli's suggested change in language, although he acknowledged that in terms of a constitutional question, more discussion would be in order, as Representative Berkowitz points out. Chair Rokeberg noted that he would work with Representative Berkowitz and the attorney general to ensure clarification on this issue. Number 1763 CHAIR ROKEBERG made a motion to adopt the suggested change in language as Conceptual Amendment 4, on page 24, at the end of line 9, after "judicial officer", to insert ", in addition to a test permitted by this section". REPRESENTATIVE BERKOWITZ objected. Number 1820 A roll call vote was taken. Representatives James, Coghill, Meyer, and Rokeberg voted for Conceptual Amendment 4. Representatives Berkowitz and Kookesh voted against it. Therefore, Conceptual Amendment 4 passed by a vote of 4-2. REPRESENTATIVE COGHILL referred to page 19, [subsection] (n), and page 28 [subsection (p)]. He noted that [these subsections] talk about someone who has been previously convicted two times, and then go on to list specific sentences, depending on how many previous convictions a person has. He said it seems like a mismatch to him, and he requested clarification because it appears to say "if a person is convicted" and then steps back and specifies minimum sentences. CHAIR ROKEBERG clarified that this provision lists the minimum sentences imposed, depending on how many prior convictions a person has at the class C felony level. REPRESENTATIVE BERKOWITZ further clarified that not every third- time offense becomes a felony, due to the ["look back"] provisions. CHAIR ROKEBERG remarked that Ms. Seitz will be preparing a "reading guide" which will illustrate that approximately half of [Version B] simply makes the [refusal provisions] mirror the DUI provisions, and another major portion of [Version B] changes the DUI provisions so that they include inhalants. He also informed members that he would be providing them with the packet that will accompany HB 4 as it progresses to the House Finance Committee, so that members may relay to him any questions or concerns regarding [Version B, as amended]. CHAIR ROKEBERG, for the benefit of agency representatives, said: The issue regarding the calculation of the .08 BAC -- I think that we have had sufficient evidence from the Department of Public Safety to demonstrate that ... they should use the 5 percent increase in BAC [.08] apprehensions, not the 10 or 15 percent, when calculating their fiscal notes, ... because I'm going to recommend that to the finance committee .... ... I think ... that we've had sufficient evidence to go with that, and I just want to caution everybody when they're developing their fiscal notes. Number 1979 REPRESENTATIVE JAMES moved to report CSHB 4, version 22- LS0046\B, Ford, 4/2/01, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 4(JUD) was reported from the House Judiciary Standing Committee.
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