Legislature(2001 - 2002)
02/01/2002 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 329 - CHEMICAL TESTS FOR AUTO ACCIDENTS Number 0052 CHAIR ROKEBERG announced that the first order of business would be HOUSE BILL NO. 329, "An Act requiring that a chemical test be administered to determine the presence of alcohol or a controlled substance after the commission of an offense while operating a motor vehicle, aircraft, or watercraft." Number 0098 HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg, House Judiciary Standing Committee, Alaska State Legislature, presented HB 329 on behalf of the House Judiciary Standing Committee, sponsor. She explained that the current law says that if a person who was driving a vehicle is under arrest for suspicion of intoxication after being in an accident, then the arresting officer has discretion regarding when a chemical test can be administered. She added that the chemical test could be administered for either the presence of alcohol or a controlled substance. MS. NOBREGA relayed that HB 329 would remove the requirement that the arrest be because of suspected intoxication, so that if a person is under arrest for any reason related to the accident, the chemical test would be mandatory. She noted that in members' packets is a proposed committee substitute that would expand what the chemical test would be for; in addition to testing for the presence of alcohol, the test would also be used to determine the presence of any substance that impairs the person's ability to drive. She mentioned that this expansion was requested by several people, one of whom is a police officer, who thought that the term "controlled substances" was too narrow. Number 0274 REPRESENTATIVES BERKOWITZ, OGAN, and MEYER moved to adopt the proposed committee substitute (CS) for HB 329, version 22- LS1234\C, Ford, 1/25/02, as a work draft. There being no objection, Version C was before the committee. REPRESENTATIVE OGAN noted that Version C contains the phrase "an accident that causes death or physical injury to another person", but does not specify that the injury be a serious one; thus the test could be mandated even if the accident only resulted in a bump on the head or a sprained finger. He opined that this language is too inclusive. He suggested that the legislation should specify that the injury be a serious one. He then asked if mandating the chemical test bypasses "the search warrant issue," or violates the Fourth Amendment of the U.S. Constitution or the Alaska State Constitution with regard to improper search and seizure MS. NOBREGA said that according to her understanding, this would be a search incident to an arrest, so there would have to be an arrest first. Under the "search incident to an arrest doctrine," some searches can be performed, so the arresting officer can have the chemical test performed and then get a warrant for the results of that test, she added. MS. NOBREGA, in response to questions, explained that before the May 2000 Alaska Court of Appeals' decision in Blank v. State, the implied consent statute, AS 28.35.031(g), said in part: A person who operates ... a motor vehicle ... shall be considered to have given consent to a chemical test ... if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person. The test ... may be administered at the discretion of the law enforcement officer .... MS. NOBREGA pointed out that in this subsection, there is no requirement that an arrest take place first. However, the Blank decision, she noted, found subsection (g) to be unconstitutional because, in that case, since there was no arrest and there was no "articulable" suspicion that this person had been drinking, the search was illegal. She indicated that in the Blank case there was no probable cause to test because "it was just too general that every driver be tested." In Blank, she added, it was also decided that, "our Supreme Court requires the formality of an arrest before a search like this can be administered." She noted that the proposed change to AS 28.35.035(a), via HB 329, still stipulates that an arrest take place before the defendant is searched. Number 0612 REPRESENTATIVE OGAN asked whether a search warrant would still be needed after a person is arrested. He also asked whether being arrested waives a person's rights regarding unreasonable searches and seizures as stated in Article I, Section 14, of the Alaska State Constitution, or the right of privacy as stated in Section 22. MS. NOBREGA, in response, relayed that in the Blank decision, the court said that while the Fourth Amendment of the U.S. Constitution may not require an arrest before a search is performed, the Alaska State Constitution does require that formality. She noted that according to her recollection, there are two times a search can be conducted: A search can be preformed after an arrest, and a search can be performed after a warrant is issued. She added, however, that there are certain searches that are allowed after an arrest that do not require a warrant. REPRESENTATIVE OGAN asked, "Like ... they can search the person for weapons and immediately secure the area and that kind of thing, but bodily invasions like a ... blood test, ... did they delineate that in the [court] decision?" MS. NOBREGA replied that the court addressed the issue of "warrantless" searches and when they are allowed; the court said that having the arrest take place first did ensure that the person suspected is protected from any arbitrary denial of the right to privacy. Thus, according to the court with regard to the Blank case, the arrest was really the important requirement before the search was performed. She added that she did not recall the court specifically saying that there must be an arrest and a warrant issued before the search is performed. REPRESENTATIVE BERKOWITZ said that he wished he could recall more regarding implied consent. He acknowledged that the Blank case clearly involved alcohol, but noted that HB 329 mandates that an intrusive test - drawing blood - be performed even in situations where there is no indication that alcohol or any other substance is involved. He asked whether this is an accurate interpretation of HB 329. Number 0908 MS. NOBREGA said that is an accurate interpretation of HB 329 but reminded members that a person still has to be arrested as a result of an accident first. REPRESENTATIVE BERKOWITZ said he suspects that would raise questions regarding the propriety of performing that kind of intrusive search without having a warrant and without having probable cause to support such a search. He posited that according to HB 329, "you could [have] someone [arrested] for an assault and then draw blood, even if there is no indication that alcohol was a factor," which, he added, raises some Fourth Amendment questions. Number 0997 CINDY CASHEN, Juneau Chapter, Mothers Against Drunk Driving (MADD), said that MADD supports HB 329. She explained that MADD recognizes that it is a privilege to operate a motorized vehicle and is of the opinion that anyone who drives a motor vehicle should be given a chemical test for the purpose of determining the alcohol content of his/her blood in the event of a crash. She added that MADD feels this will assist victims of drunk driving. "When an officer or trooper is able to give a blood alcohol [concentration (BAC) test] stemming from an arrest due to probable cause," she offered, "this will determine whether the incident is an accident or crash; there is a significant difference in these two words where alcohol is concerned." She noted that the MADD Alaska chapters are of the opinion that HB 329 will provide for better care of victims of drunk drivers, and she urged members to pass it. Number 1020 LARRY HOULE testified via teleconference and said that while he supports the intent of HB 329, he would also suggest that it does not go far enough. To illustrate this point, he relayed his personal experience: On August 11th, there was a situation where there was a motor vehicle headed eastbound on O'Malley Road, and the vehicle turned in front of a "People Mover" bus. The passenger in the backseat was ejected from the vehicle and died within 24 hours of the accident, in the hospital. The passenger in the front seat was actually in a coma for 22 days and is now back at school -- these were three teenage kids. The driver was taken to the hospital, admitted to the hospital, a blood sample was taken, but no [toxicology] and no chemical testing was accomplished on the driver of the vehicle. ... The passenger in the backseat of the car, again, died within 24 hours. There's a situation here where there was no arrest on the scene, in fact, it took over 120 days for the driver to even be cited; the citation was failure to yield to oncoming traffic. What I'm suggesting is that the standard of an arrest is too low for a blood [toxicology] or chemical testing. In a situation where you have a certain level of accident where there was an emergency-room admission, or where there is a death on the scene or in close proximity to the scene, I'm suggesting that there needs to be a consideration for a [toxicology] on the driver. ... I believe strongly in the right to privacy and our Fourth Amendment to the [U.S.] Constitution and Section 22 of the Alaska [State] Constitution, but I also believe strongly in the rights of the dead victims in this particular case. MR. HOULE: So, I would encourage the bill to be passed as it's written but I think that we need to look at additional considerations for a different standard - a reasonable standard - for blood [toxicology] in light of accidents where an arrest is not made at that scene. Like I said, it took 120 days for the citation. What if the arrest had come 120 days after the fact? What happens to the blood sample? What happens ... if there isn't even a blood sample taken? So, I'm not as eloquent as I probably should [be] on this issue but it's [a] very emotional one to me, and I do applaud the chairman and his committee for this effort thus far. Number 1283 JULIA P. GRIMES, Lieutenant, Division of Alaska State Troopers, Department of Public Safety (DPS), testified via teleconference and said that the DPS agrees with Representative Ogan's point that the language in HB 329 should perhaps be changed to say "serious physical injury", since simply saying "physical injury" would have an inadvertent impact on law enforcement in that it would expand the number of scenarios where this mandated test would be appropriate and could include a situation where there was simply a scratch or a bruise. CHAIR ROKEBERG remarked that the committee would probably be adopting an amendment to remedy that omission. LIEUTENANT GRIMES noted that the DPS also has a concern with changing the language from "may" to "shall"; logistically, in remote areas of the state, a person could be placed under arrest for an accident in which someone is hurt or killed, and the ability to actually draw blood or urine is simply not available. The potential is for the four-hour time period to pass before the DPS could get that person to a facility in order to take blood, so even though the DPS's desire would be to get a sample, the department would be in violation of the law. In any ensuing court case, the defense could be raised that the there might have been exculpatory evidence in the blood sample that was not drawn. LIEUTENANT GRIMES mentioned another possible scenario: "Occasionally we have suspect drivers that [are] under arrest for having been in an accident, they're in the hospital but are so combative that the medical personnel, by their policy, will not attempt to draw the blood or urine." Again, this is another scenario in which the DPS would certainly want a sample but cannot obtain it, and thus would be in violation of the law. REPRESENTATIVE BERKOWITZ asked Lieutenant Grimes whether, from her perspective, the phrase "and that arrest results from an accident" adds anything. "Wouldn't you want to test anyone who's arrested for an offense?" He also noted that last year, the committee adopted the use of the phrase "under the influence" instead of "while intoxicated". CHAIR ROKEBERG pointed out that the [Senate] has not yet adopted that change. Number 1453 REPRESENTATIVE BERKOWITZ asked Lieutenant Grimes whether the statute would work for her - and give the DPS more latitude - if it said: If a person is under arrest for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle, aircraft, or watercraft under the influence, a chemical test may be administered to determine the amount of alcohol in the person's .... LIEUTENANT GRIMES said that she supposed it would. As it is, she noted, the protocol [handed down] from the Department of Law (DOL) to law enforcement involves obtaining blood and urine from anyone involved in an accident where someone is hurt or killed, "and that is certainly something we do every time we can." REPRESENTATIVE BERKOWITZ asked: "So, you'd do this anyway?" LIEUTENANT GRIMES replied: "We certainly try to do it. Of course we have scenarios where the suspect is under arrest, and then scenarios where the suspect driver is not under arrest." When the driver is not under arrest, [the troopers] obtain a search warrant for the sample, "but we still get the sample if we can." REPRESENTATIVE BERKOWITZ asked whether, if law enforcement suspects that the evanescent evidence - the blood alcohol concentration - is going to disappear over time, it would be considered exigent circumstances, which would allow law enforcement to draw blood without a warrant. LIEUTENANT GRIMES said that is correct, but noted that it is also because current statute states that law enforcement does not need the consent of the person arrested if he/she were driving and an accident resulted; "we draw the blood because they have no right to refuse it." REPRESENTATIVE BERKOWITZ: So it's the implied consent. Number 1637 MARTI GREESON, Executive Director, Anchorage Chapter, Mothers Against Drunk Driving (MADD), testified via teleconference and said that in addition to the testimony given by Ms. Cashen, she wanted to speak on a couple of other issues. On the issue of needing the arrest to have occurred [before the test is administered], she said that because Alaska doesn't have enough [law enforcement] officers that are trained to recognize when someone is under the influence of drugs or other substances, law enforcement may not have enough probable cause to make the arrest until the results of the test are known. She also said that MADD encourages inclusion of testing for drugs, inhalants, and other substances. In conclusion, she said that MADD supports HB 329. Number 1715 MARK MEW, Deputy Chief, Anchorage Police Department (APD), Municipality of Anchorage, testified via teleconference. He said that in addition to speaking on behalf of the APD, he is also speaking as the secretary for the Alaska Association of Chiefs of Police (AACP). He said that "all of us in law enforcement took a look at [HB 329] and weren't exactly sure what to make of it," and that he is having trouble deciding what problem [HB 329] is attempting to solve. He posited that perhaps it is to allow for tests to be conducted for substances other than alcohol. He noted, however, that as Lieutenant Grimes has indicated, if someone is under arrest for committing a crime and there has been an accident and APD believes the person is intoxicated, APD is going to get a search warrant; "we're going to get the sample, either way." MR. MEW then posited that perhaps that is not the issue; that perhaps the issue is that the person has been arrested for some crime other than drinking while intoxicated (DWI) [after having] gotten in a wreck. But if that is the case, he asked, what is the need for mandating the chemical test. He added that if law enforcement has the discretion - via "may" - to get the sample and test for other drugs if necessary, "then I guess we're getting someplace" because then law enforcement wouldn't have to collect samples in situations where somebody has a fender bender and commits a theft of his/her passenger, for example. "But I'm not sure if we're there yet," he noted. By keeping "may", as opposed to "shall", it eases some of law enforcement's concerns, he remarked. CHAIR ROKEBERG said that although he considers it appropriate to remove "while intoxicated" from current statute, as is proposed in HB 329, the arrest then has be based on another crime. He also remarked that if a sample has been taken, there is still the issue of whether that information can be revealed in any forthcoming civil action. Number 1871 MR. MEW said that although it appears to him that everybody wants to get to some resolution and thereby improve current law, he also has the feeling that everyone is attempting to rewrite HB 329 verbally, which leads to confusion about what [the language] will really mean. CHAIR ROKEBERG remarked that although MADD brought this idea forth and is not happy "with where we're at now," the legislature is struggling with some constitutional issues. REPRESENTATIVE OGAN said that although there are certain searches that are allowed without probable cause, including obtaining a blood test if someone is intoxicated, generally there has to be probable cause before a chemical test can be performed. He said that by removing "while intoxicated" and mandating that a test be performed on anybody who gets in an accident, he wondered "where we're going on the probable cause issue." He asked Mr. Mew to explain "the procedures [regarding] when you can search and how much you can do before and after an arrest." MR. MEW noted that the general requirement is for law enforcement to have a warrant, and a warrant requires that probable cause be established before a judge. The law provides several exceptions to that search warrant requirement, however, and one is consent, and another is "plain view"; also there are a variety of exigent circumstances that allow for a search to be performed without a warrant, one of which is imminent destruction of the evidence, and one is "hot pursuit." Consent, he noted, is one of the exceptions that officers use as their first avenue; "you ask a person and if they give you consent to search [his/her] person or ... home or whatever," then it's a legal search. He said that it seems to him that implied consent is just that: when a person gets a driver's license, he/she is implying that consent is given for searches. MR. MEW said, "We need probable cause to make the arrest, regardless of the search and seizure issues." So if a person is being arresting for driving while intoxicated or assault or disorderly conduct, law enforcement still has to meet the threshold of probable cause in order for the arrest to take place. According to his understanding of HB 329, he said, law enforcement would have already established probable cause that some crime was committed in connection with the accident that occurred. He noted, however, that if that crime is DWI, law enforcement [already] has procedures for acquiring that evidence, with the exception of [testing for] chemicals other than alcohol. Number 2077 REPRESENTATIVE BERKOWITZ suggested that perhaps "we ought to be putting something in the implied consent statute, which solely focuses on alcohol." All drivers, he noted, have given implied consent to be tested for alcohol content if lawfully arrested for an offense arising out of acts alleged to have been committed while they were operating or driving a motor vehicle. "And what I'm hearing people say here, is they want to go beyond alcohol and want to be able to test for other substances." He asked whether this was a correct interpretation. CHAIR ROKEBERG said, "I think so, and I think that's one reason for the committee substitute: ... we wanted to broaden that definition to inhalants and controlled substances." He noted, however, that there is already reference to controlled substances in AS 28.35.035, so perhaps at issue is the constitutional aspect of how implied consent can be applied. Number 2159 MIKE FORD, Attorney, Legislative Counsel, Legal and Research Services Division, Legislative Affairs Agency, remarked that the issues raised thus far are good ones because this is a very complex area of the law. By deleting the language "while intoxicated", and by broadening it to "any substance that impairs the person's ability to drive", the legislature is fundamentally changing the impact of the provision. He added that he is not certain that "this" would survive a constitutional challenge, although he is doing some research to determine a conclusion on that point. MR. FORD said typically, the cases that interpret this provision are all about DWI; they are all about people who have evidence of intoxication. "So when you take out that link, and you broaden this to simply an arrest involving a motor vehicle with a death or physical injury of some kind, you do change that process"; although, he added, it may simply be that the exceptions to the rule requiring a warrant for a search are not sufficiently broad enough to encompass the kind of change proposed by HB 329. REPRESENTATIVE OGAN asked if Mr. Ford's constitutional concerns center around the removal of "while intoxicated". MR. FORD said yes. [Without that language] when someone is stopped for an accident and then arrested, it could be for something as simple as having a taillight out - something that has nothing to do with being intoxicated - and yet the driver would be tested. He noted, however, that the accident would also involve a death or serious physical injury, so those elements may create justification for the test - a special exception to the rule requiring a warrant before testing. Notwithstanding this possibility, he said, "I am not convinced of that at this point." CHAIR ROKEBERG posited that because an accident occurred, the arrest wouldn't stem simply from a taillight being out. MR. FORD clarified that his point in using that example is that the arrest could be for something completely unrelated to intoxication. CHAIR ROKEBERG explained that the objective is to ensure that regardless of the reason for the arrest, the test is administered if an accident occurred and resulted in the death or serious physical injury of someone. MR. FORD mentioned that a number of cases "point that out: that the purpose of this is not simply to convict someone, but to exonerate them." CHAIR ROKEBERG said, "Right." MR. FORD added: "The fact is that there may be no appearance of intoxication from someone who is impaired." Number 2335 CHAIR ROKEBERG said that's true; "I think that's exactly the point here: we want to make sure that person has had that chemical test to make sure that that is the case, one way or the other, because many people can conceal their use of intoxicating spirits and/or substances." MR. FORD said that's correct, and that that's been pointed out by some judges. He added that the evidence may be disappearing while law enforcement is "standing there trying to figure out what to do." He offered that "those all may be good reasons to justify another exception to the warrant requirement." CHAIR ROKEBERG asked Mr. Ford if he considers the issuance of a citation the equivalent of an arrest. MR. FORD said no; an arrest is a defined process. CHAIR ROKEBERG surmised, then, that a speeding citation wouldn't "tripwire this provision." MR. FORD said that is correct. REPRESENTATIVE BERKOWITZ asked for an explanation of why [a search/chemical test] is constitutionally permissible under the implied consent statute. MR. FORD said that [that search/chemical test] is tied to an arrest for driving while intoxicated, which the courts have held is justifiable; a person can be tested, and even though the test is a search, it is justified. REPRESENTATIVE BERKOWITZ noted that in subsection (b) of the implied consent [law], which allows for a preliminary breath test (PBT), he does not see an arrest requirement. He asked whether there would be any difficulty in extending the implied consent [statute] to include other substances. MR. FORD said that returns to the question of how broad the search exception can be made. As [HB 329] is currently written, it refers to a substance that impairs as opposed to an alcoholic substance or a controlled substance. "And I think that would be okay," he said, "if you can do this, if you can simply not link it to intoxication; if that survived the challenge, then I don't see any problem with expanding it beyond alcohol or controlled substances." REPRESENTATIVE BERKOWITZ said: As long as it is focused on substances that could impair. MR. FORD said, "Right." He indicated that determining that the accident is related to the driving is a consequence of the test. TAPE 02-7, SIDE B Number 2457 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), said that the DOL's position is: "We really agree with MADD's purpose, and I think it is to get the best evidence possible to prosecute DWI cases." She added, however, that the DOL has some serious concerns with HB 329 because [the DOL] is not sure that "it gets them where they want to be or it gets you where you want to be." She noted, for example, that "physical injury" is statutorily defined as "a pain". On the issue of requiring law enforcement to administer a test in all cases, she said it doesn't make a lot of sense because there are a lot of cases in which the tests are not needed and so there is no reason to administer one; it would be expensive and impracticable. MS. CARPENETI, referring to Ms. Nobrega's statement that HB 329 is in response to the Blank decision, explained that the Blank decision focused on implied consent, whereas HB 329 amends a different statute that really doesn't address implied consent. She noted that the DOL has petitioned the [Alaska] Supreme Court to review the Blank decision, and that petition has been granted, briefed, and argued. Hence, there is another court waiting to look at these same issues. In the Blank case, in which [the defendant] was not arrested for driving while intoxicated and the police went to her home and talked to her, the police testified that there was no reason to take a breath test in that case because the officer didn't have any reason to believe she was impaired. The court held that the implied consent statute - specifically subsection (g) - failed because it didn't require an arrest and because there was no nexus between the arrest and any kind of evidence that alcohol or another substance impaired her driving. MS. CARPENETI said that although HB 329 has great intentions, when the language says that law enforcement "shall" [administer] a test in every case, whether or not there is any evidence of alcohol or drug abuse, it raises constitutional issues and risks the constitutionality of the statute affected by HB 329, which is what occurred with subsection (g) of the implied consent statute. She remarked that the DOL would be happy to help try to figure out a better way, but cautioned that in addition to the practical problems with some of the drafting, if the changes proposed by HB 329 go through, "you're going to risk losing this one too." MS. CARPENETI noted that she also has to echo what the troopers and the police have said: "we get this evidence in most cases." She said that the DOL has been trying to figure out what cases the committee was looking at as the genesis for HB 329, since this evidence is gathered [routinely] in DWI cases, and in other cases such as assault by using a warrant. She surmised that perhaps the changes proposed by HB 329 would apply to cases of reckless driving and leaving the scene of an accident. Certainly an equipment violation wouldn't justify an arrest, she noted. Number 2300 CHAIR ROKEBERG mentioned that in the case Mr. Houle relayed, the driver turned into the wrong lane. MS. CARPENETI said that she was not familiar with that case, adding that she was not sure whether someone could be arrested for making an illegal lane change. Returning to the issue of reckless driving, she noted that if someone is arrested for reckless driving and there is any indication of alcohol use, a test could be administered. CHAIR ROKEBERG reiterated that many people can mask such use. MS. CARPENETI said unfortunately that is correct, but "our constitution says you can't test in every case unless there is some exception to the warrant requirement or some reason that you can articulate." Again, she said: "I'd be happy to work with you but I don't think this gets you where you want to go in a way that you can assure that it would be upheld if challenged." REPRESENTATIVE COGHILL, referring to the new language proposed on lines 11 and 12, asked whether the term "impairs the person's ability to drive" is defensible. MS. CARPENETI said that the use of that term does not concern her. REPRESENTATIVE COGHILL asked whether antihistamines would be covered under the term "any substance". If so, then that could become an issue too because "it increases the threshold for impaired driving." MS. CARPENETI agreed; the term "any substance" could include lots of different things, she noted. REPRESENTATIVE MEYER asked whether it is possible to test for or detect inhalant use, and whether there is a definition of inhalant. MS. CARPENETI said that she could not answer [those] questions [definitively], but offered that it might be possible to detect some inhalants and/or test for them. Number 2143 TAMARA COOK, Director, Office of the Director, Legal and Research Services Division, Legislative Affairs Agency, said that although she doesn't really have anything to add [to the discussion], she did find one case from Montana that is very, very recent and does not involve DWI; it's entirely different. [The case] actually involved the arrest of an individual whose hands looked bloody, in conjunction with a crime scene at another location where blood was left. She explained that in this particular case, after the arrest, "they took a sample from the person's hands that were bloody" for the purposes of trying to match that blood [with the blood left] at the crime scene. The court in Montana determined that "that alone was impermissible." She said she found this interesting because the court based its decision on the fact that Montana has an explicit right to privacy in its constitution, as does Alaska. MS. COOK relayed that the [Montana] court specifically held that whereas the U.S. Constitution has adopted a bright-line rule permitting warrantless searches incident to arrest, such searches are only permissible under the Montana constitution to prevent the arrestee from escaping, from using weapons, or from destroying incriminating evidence. She said: My suspicion is our court would use pretty similar reasoning. Whether they would think that something like the presence of a substance that dissipates constitutes destroying incriminating evidence -- my hunch is that they wouldn't because of some of the language in the Blank decision. But nonetheless, I think here's an indication that it's not just Alaska that has concerns with the notion that you can do warrantless searches incident to arrest in all circumstances. So for what it's worth, it's out there; it's brand new - [a] 2001 case. REPRESENTATIVE OGAN asked: "Has the implied consent issue been litigated to the U.S. Supreme Court, that you are aware of?" MS. COOK said that this is not an area that she is familiar with. MS. CARPENETI replied that she did not believe so. MR. FORD said that the Alaska Supreme Court has looked at the issue, and "it has survived challenge." CHAIR ROKEBERG asked Ms. Greeson to explain what prompted MADD to bring the concept of HB 329 to the committee. Number 1984 MS. GREESON said that the initial incident was a crash that occurred down on the Kenai Peninsula: There were two young women coming toward town - so northbound - and there were, I believe, about five friends who were heading ... to go fishing for the weekend. It was very late, early morning hours, and there was one young woman passenger in the one vehicle heading toward Anchorage and then the passengers in the truck [full] of fisherman [who] were all asleep; ... only the two drivers were awake. We assume they were both awake. And it was raining - it was over the fourth of July - so it [was] raining very, very hard last year. ... The crash occurred on a curved area of the highway, and the young woman driver was killed, so there was only one witness to the crash involved at all: it was the other driver. ... No testing was done [on him]; ... of course there was an autopsy done and a full toxicology report done on the young woman who was killed, but nothing done on the other driver. So that was the incident that was brought initially to our attention, and then [there is] our concern about [the fact] that we do have some serious problems with drugs and other substances throughout Alaska, and we have very few officers available who are well-trained in the recognition of any signs that there may be drugs or other substances. ... We felt that this was an important issue: that testing should occur ... when there's serious or critical injury or death resulting from a motor vehicle crash. MR. HOULE said that he agrees with Ms. Greeson. He pointed out that in his own situation, there was a complete toxicology done on his son but not on the driver. He added that neither he nor his son gave consent for this testing to be done. "So there is a situation here where the probable cause determination is a difficult one for the officers, and maybe we can help them out with a stronger law," he offered. CHAIR ROKEBERG said that is the problem: without the probable cause, [HB 329] does not appear to be constitutionally sound. REPRESENTATIVE OGAN noted that basically, regardless of whether there is probable cause to believe that the driver is intoxicated, the legislature would be mandating that a chemical test be administered simply because there is an accident in which someone gets hurt. "Is that a major constitutional hurdle ... in your opinion?" Number 1788 MS. COOK said: "I think that's right, and I think that's the thrust of what is trying to be achieved with this bill; I think that's ... deliberate. REPRESENTATIVE OGAN asked: So the fact that the person got in an accident and someone was seriously hurt - that isn't probable cause enough for a chemical test? MS. COOK said that that is obviously the issue that members are wrestling with. As far as she could tell, she added, there is a fair chance that a court will find that it isn't [probable cause enough]. CHAIR ROKEBERG asked: Even with the arrest? He indicated that he viewed the arrest as grounds for probable cause. MS. COOK pointed out that the arrest may be for behavior that isn't necessarily joined with the use of alcohol per se; that's the problem with trying to say that the arrest constitutes probable cause. CHAIR ROKEBERG noted that in certain cases, such as those described, chemical tests were not administered to the surviving drivers even though the results from such testing "could have established the nexus" for additional charges. Tests were only done on the individuals who died but not on the drivers who may have caused the accident. MS. COOK said she can appreciate members' frustration. She offered that perhaps a solution would be to alter the implied consent statute, as Representative Berkowitz has suggested, so that rather than having a mandatory test, refusal to take a test would result in other consequences, which is what the current implied consent statute does. CHAIR ROKEBERG remarked that there is a good deal of case law pertaining to the implied consent statute. Number 1678 REPRESENTATIVE JAMES noted that the arrest does not necessarily mean that there is any probable cause for any kind of "chemical activity," and that it seems to her that unless there is some sort of "activity, or action, or behavior" which indicates that someone is under the influence of something, there is no probable cause for a test regardless of whether there has been an arrest. She pointed out, however, that the language in Version C specifies that the arrest result from an accident, so there is a connection between the arrest and the accident. So it seems to her, she added, that the thing to do, then, would be to ask the driver if he/she would be willing to take a test, and if he/she refuses, charge that person with refusal. CHAIR ROKEBERG said that since reckless driving is an "arrestable" offense, it could "tripwire the mandated chemical test." He noted that he does have concerns with the issue raised by Lieutenant Grimes regarding the feasibility of mandating the chemical test. He asked Ms. Cook whether that provision could be altered so that "shall" was modified by "where feasible" or something similar. He asked whether that would just weaken "any constitutional test" or whether it would it give a "defense counsel" a way to wiggle through. MS. COOK said: Well ... as far as that goes, ... I think your problem there probably doesn't get involved in constitutional issues so much as administrative burden. Basically, if you add "where feasible", you've built in some discretion - some wiggle room; how much - would be the source of argument, I suppose, on case-by-case basis. That alone could become a bone of contention, but it might be that even doing that much would give enforcement personnel a level of comfort that if they could demonstrate a radical enough set of facts, they could avoid having to administer the test - such as the lack of cooperation on the part of the person being tested. CHAIR ROKEBERG asked of Lieutenant Grimes: "In the rural areas, even if you had a DWI situation ... and no breathalyzer, do you take a blood test now? What if you can't take a blood test? What do you do?" LIEUTENANT GRIMES explained that the DWI cases that come out of the remote areas are based largely on the observations of the officer, which are all articulated and documented in the report; many times there is no intoximeter reading and those cases go to trial with just the officer's observations. She noted that although most of the officers have portable breath testers, which are also known as PBTs, [the results from] those are not admissible in court. The portable breath testers are simply used to help establish probable cause so that arrests can be made on the scene. She noted that many of the cases that are based solely on the observations of the officers are successfully prosecuted. Number 1388 CHAIR ROKEBERG announced that he would keep the public hearing open, and that HB 329 would be held over.
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