Legislature(2009 - 2010)CAPITOL 120
01/29/2010 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB271 | |
| HB144 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 144 | TELECONFERENCED | |
| *+ | HB 271 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 271 - DUI PENALTIES
1:09:00 PM
VICE CHAIR DAHLSTROM announced that the first order of business
would be HOUSE BILL NO. 271, "An Act relating to the offenses of
driving while under the influence of an alcoholic beverage,
inhalant, or controlled substance and refusal to submit to a
chemical test."
1:09:43 PM
REPRESENTATIVE MIKE HAWKER, Alaska State Legislature, sponsor,
explained that HB 271 is intended to address people's concerns
about repeat driving under the influence (DUI) offenders. One
concern centers on the fact that DUI offenders who have their
vehicles impounded as a result of the DUI can just reclaim their
vehicle and drive away. The bill would require, via court
order, that any such vehicle be equipped with an ignition
interlock device before it can be taken out of impound by the
DUI offender and that the DUI offender be prohibited from
driving any vehicle that doesn't have an ignition interlock
device, and would amend the repeat [DUI] offender [and repeat
refusal to take a chemical test] statutes such that second and
subsequent offenses within 10 years would trigger those felony
provisions that are currently triggered by third and subsequent
offenses within 10 years.
REPRESENTATIVE GATTO offered his understanding that ignition
interlock devices have been effective, and that research from
other states indicates that immediate incarceration for a DUI
does have an effect on DUI recidivism rates. He observed that
the [Department of Corrections' (DOC's)] fiscal note estimates a
cost of $7 million [for the implementation of Section 2 of HB
271], and mentioned that members' packets now include a proposed
amendment, labeled 26-LS1271\R.1, Luckhaupt, 1/29/10, which
read:
Page 1, following line 3:
Insert a new bill section to read:
"* Section 1. AS 12.25.180(a) is amended to read:
(a) When a person is stopped or contacted by a
peace officer for the commission of a misdemeanor or
the violation of a municipal ordinance, the person
may, in the discretion of the contacting peace
officer, be issued a citation instead of being taken
before a judge or magistrate under AS 12.25.150,
unless
(1) the person does not furnish
satisfactory evidence of identity;
(2) the contacting officer has reasonable
and probable cause to believe the person is a danger
to self or others;
(3) the crime for which the person is
contacted is one involving violence or harm to another
person or to property;
(4) the person asks to be taken before a
judge or magistrate under AS 12.25.150; [OR]
(5) the peace officer has probable cause to
believe the person committed a crime involving
domestic violence; in this paragraph, "crime involving
domestic violence" has the meaning given in
AS 18.66.990; or
(6) the crime for which the person is
contacted is a violation of AS 28.33.030, 28.33.031,
AS 28.35.030, or 28.35.032."
Page 1, line 4:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
REPRESENTATIVE HAWKER noted that current law requires certain
DUI offenders to use an ignition interlock device in order to
regain driving privileges after conviction, whereas the bill is
proposing to require released DUI offenders to use an ignition
interlock device prior to their trial - prior to conviction. He
offered his understanding that current law already provides for
immediate incarceration.
REPRESENTATIVE HOLMES concurred that DUI crimes are a huge
problem in Alaska, particularly on the Seward Highway.
REPRESENTATIVE HAWKER noted that a felony DUI conviction results
in the DUI offender having his/her driving privileges
permanently revoked.
REPRESENTATIVE GRUENBERG asked whether Legislative Legal and
Research Services has issued an opinion, either formal or
informal, regarding the constitutionality of the bill.
1:22:00 PM
JULI LUCKY, Staff, Representative Mike Hawker, Alaska State
Legislature, on behalf of the sponsor, Representative Hawker,
said that although a formal legal opinion was requested, the
sponsor hasn't received one, but discussions with the drafter
indicate that there is no definitive answer, even on the issue
of whether the use of ignition interlock devices can be required
prior to conviction. In response to a question, she agreed to
submit a written request for a formal legal opinion.
REPRESENTATIVE GRUENBERG remarked that it was that issue -
whether it's constitutional to require something that would be
an element of the punishment phase, "before they've even been
charged" - which concerned him. He asked whether any other
potential constitutional issues were addressed in discussions
with the drafter.
MS. LUCKY said no, and offered her understanding that some other
states do require the use of ignition interlock devices before
conviction, but she is unfamiliar with whether there have been
any constitutional challenges to such laws. She mentioned that
she is researching that issue further, though, and so would
provide information to the committee as soon as it's available.
REPRESENTATIVE GRUENBERG, referring to Section 2, asked whether
any constitutional issues have arisen with regard to permanently
revoking someone's driving privileges for a second DUI,
specifically whether doing so would constitute cruel and unusual
punishment.
MS. LUCKY said that issue has not yet been raised by the
drafter, and offered to research that point further. She noted
that some states and the [United States Virgin Islands] do make
a second DUI conviction a felony, though she is not sure whether
those laws have been challenged; that issue is being researched
further as well. In response to questions, comments, and a
request, she agreed to conduct further research regarding any
potential constitutional problems with the bill, adding that it
is the sponsor's intent to have any such issues put on the table
for members to discuss.
REPRESENTATIVE HOLMES expressed interest in receiving any
statistics illustrating that those who get stopped for DUI are
then reoffending before they go to trial for the initial
offense.
REPRESENTATIVE HAWKER said that sort of analysis did not enter
into his consideration of the bill; instead, he is bringing
HB 271 forward at the request of his constituents, who feel
threatened by [repeat DUI offenders].
REPRESENTATIVE GRUENBERG asked that the aforementioned proposed
amendment be labeled.
VICE CHAIR DAHLSTROM expressed a preference for not doing so at
this time because there could be other forthcoming amendments
that need to be addressed first.
1:30:35 PM
JOSEPH A. MASTERS, Commissioner, Department of Public Safety
(DPS), relayed that although the DPS has not yet had much time
to review HB 271, the issue of highway safety is an important
one for the DPS and deserves serious attention from everyone.
He noted that the DPS is currently arresting approximately 6,300
people yearly for DUI; that in 2007, 2008, and 2009, 43 percent,
45 percent, and 25 percent, respectively, of fatal crashes were
alcohol related; that over a 10-year period, there were 44,238
motor vehicle accidents, with 454 being fatal, 8,888 involving
injuries, and 2,900 caused by multiple-DUI offenders; that of
those 2,900 motor vehicle accidents, 92 were fatal and 1,024
involved injuries.
REPRESENTATIVE GATTO expressed interest in receiving statistics
illustrating the link between DUI offenders, and - in terms of
their alcohol consumption - sex offenders and domestic violence
(DV) perpetrators.
COMMISSIONER MASTERS agreed to attempt to compile such
information, but cautioned that it might not be possible given
the current capability of the DPS's database system.
REPRESENTATIVE GRUENBERG asked how [Section 1] would work in
areas of the state where ignition interlock devices are not
available.
COMMISSIONER MASTERS said the DPS is already investigating that
issue, and indicated that Lieutenant Dial could address it
further. In response to other questions, he said that according
to his experience, very, very few people who are stopped for a
possible DUI actually refuse to submit to a chemical test; and
indicated that there are several ways for law enforcement to
determine a person's sobriety or lack thereof when he/she is
stopped for a possible DUI.
REPRESENTATIVE HOLMES expressed interest in receiving statistics
illustrating the percentage of first-time DUI offenders who
never reoffend again, the percentage of second-time DUI
offenders who never then reoffend again, and the percentage of
DUI offenders who simply continue to reoffend.
COMMISSIONER MASTERS indicated that he would attempt to provide
such statistics, as well as any other information requested by
the committee.
1:43:01 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), expressed concern with Section 1's proposed AS
12.30.022(2) in that vehicle impound policies vary across the
state, and so this provision would have different effects in
different parts of the state; in that the wait time for the
installation of ignition interlock devices also varies across
the state, and so this provision could result in some vehicles
being left in impound accruing more daily impound fees, perhaps
accruing to an amount greater than the value of the vehicle; and
in that because a vehicle can't be released until it has an
ignition interlock device installed, that installation could
cost more because it might have to occur in the impound lot. In
response to an earlier question, he mentioned that his research
indicates that ignition interlock devices can be installed in
all parts of Alaska, though the wait times, installation costs,
and difficulties with installation will vary depending on the
location.
REPRESENTATIVE GATTO questioned whether a first-time DUI
offender's vehicle could simply be taken to his/her own property
instead of to an impound lot.
VICE CHAIR DAHLSTROM pointed out that if one of her family
members were to be struck by a DUI offender, she would have
great concern if the DUI offender still had easy access to
his/her vehicle.
REPRESENTATIVE LYNN, in response to comments, asked whether
[Section 1] could be altered such that DUI offenders living in
smaller communities could be treated differently than those
living in larger communities.
REPRESENTATIVE GRUENBERG predicted that an equal protection
issue would then have to be addressed.
COMMISSIONER MASTERS surmised that someone other than himself
could better address that point.
REPRESENTATIVE GATTO offered his understanding that under
current law, people in remote locations are already exempted
from having to install an ignition interlock device.
REPRESENTATIVE HERRON indicated that in his district, because of
a lack of storage space, the local impound company refuses to
accept every vehicle that's impounded.
1:54:34 PM
LIEUTENANT DIAL in response to a question, explained that when a
person is arrested for DUI, he/she is asked to take a
breathalyzer test - generally via DataMaster equipment- but if
he/she refuses, law enforcement informs him/her that he/she
would also be charged with the crime of refusal to take a
chemical test. Those arrested for DUI have the right to obtain,
at their own expense, an independent test of their intoxication
levels - this currently involves a blood test. In response to
another question, he explained that modern breathalyzers undergo
"failsafe checks" both before and after a test is administered,
and are frequently, routinely calibrated, and are thus very
accurate.
REPRESENTATIVE GRUENBERG asked whether proposed AS 12.30.022(2)
would apply to a vehicle that the DUI offender was driving but
neither owned nor had registered in his/her name. He also asked
what occurs now in situations involving a family vehicle.
LIEUTENANT DIAL, on the latter question, explained that as of
January 2009, courts have been requiring those convicted of DUI
to install an ignition interlock devise on every vehicle he/she
owns - even work vehicles - though currently there is no way to
verify that such has occurred.
2:00:34 PM
DOUGLAS MOODY, Deputy Director, Criminal Division, Central
Office, Public Defender Agency (PDA), Department of
Administration (DOA), in response to a question, indicated that
he'd not considered there being any due process problems with
Section 1, and noted that the courts have broad leeway with
regard to setting bail restrictions.
2:03:42 PM
WINDY HANNAMAN, Deputy Director, Anchorage Office, Office of
Public Advocacy (OPA), Department of Administration (DOA), in
response to comments, agreed to research the aforementioned
issues as well.
2:05:09 PM
KERRY HENNINGS, Manager, Driver Licensing, Director's Office,
Division of Motor Vehicles (DMV), Department of Administration
(DOA), in response to questions, said that there is a provision
in law that allows the DMV, when there is a court order, to
indicate on a person's driver's license that he/she must use an
ignition interlock device; that the DMV does this automatically
when it receives notice from the court; and that when such a
person comes into the DMV to reinstate his/her driving
privileges, he/she is required to show proof of installation.
REPRESENTATIVE GRUENBERG offered his understanding that the
Alaska Court System (ACS) is too understaffed to provide such
notice, and questioned whether the bill should have a provision
added that would require the DUI offender himself/herself to
notify the DMV that he/she must use an ignition interlock
device.
MS. HENNINGS offered her belief that many DUI offenders are
already out of compliance with their court-ordered ignition
interlock device installation requirements, and predicted that
such people could not be relied upon to notify the DMV that they
have such requirements; without notification from the courts,
the DMV would be unable to place a restriction on a person's
driver's license, and law enforcement, as a result, would have
no indication that the person is required to use an ignition
interlock device.
REPRESENTATIVE GRUENBERG characterized the placing of such a
restriction on a DUI offender's driver's license as important.
LIEUTENANT DIAL clarified that because the court is currently
required to notify the DMV within five business days that the
person must use an ignition interlock device, that notification
information is reflected in the Alaska Public Safety Information
Network (APSIN), which law enforcement accesses when pulling the
person over; if the person is found to be out of compliance,
he/she is then charged with violating a court order.
REPRESENTATIVE GRUENBERG asked whether a car rental agency in
another state, for example, would have any way of knowing that a
customer from Alaska is required to use an ignition interlock
device.
MS. HENNINGS said that any such restrictions are defined on the
back of the person's driver's license, but acknowledged that it
would be up to the rental car agency to scrutinize the person's
driver's license carefully.
2:11:48 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), in response to
earlier questions, indicated that proposed AS 12.30.022(2) would
not apply to a vehicle that the DUI offender was driving but
neither owned nor had registered in his/her name; and that
Section 1 would not be a violation of due process, and would not
constitute a potential equal protection violation, because it is
a privilege to drive and not a right. The court currently has
the authority to prohibit a person from driving at all, and
that's more onerous, he opined, than simply telling a DUI
offender that he/she can only drive a car that has an ignition
interlock device. In conclusion, he characterized Section 1 as
constitutional.
REPRESENTATIVE GRUENBERG asked whether a vehicle could be
searched once it's been impounded by law enforcement.
MR. SVOBODNY noted that "impound" searches already occur and are
meant to protect law enforcement from accusations of theft. In
response to a further question, he surmised that the bill is not
intended to force the company installing an ignition interlock
device to do that installation without the DUI offender's
permission.
VICE CHAIR DAHLSTROM offered her understanding that that is not
the intention of the sponsor, either.
REPRESENTATIVE GRUENBERG surmised, then, that [proposed AS
12.30.022(2)] is not requiring a particular company to install
an ignition interlock device, but is instead just granting the
court the authority to prohibit an impound agency from returning
a motor vehicle to a DUI offender until an ignition interlock
device is installed.
MR. SVOBODNY concurred, but noted that currently there is no
criminal sanction for violating such a prohibition.
2:20:57 PM
MS. LUCKY, with regard to an issue raised earlier, noted that a
previous iteration of the bill would have required that an
ignition interlock device be installed on any vehicle involved
in a DUI offense regardless of who owned the vehicle, but the
drafter had expressed constitutional concerns with such a
requirement, and so as currently written, [proposed AS
12.30.022(2)] would not apply to a vehicle that the DUI offender
was driving but neither owned nor had registered in his/her
name. With regard to a point made earlier, she noted that the
DMV has compiled a list of areas of the state where the
installation of an ignition interlock device is not required in
order to comply with existing law, but explained that this type
of exemption wouldn't apply under HB 271 because [Section 1] is
simply setting conditions of bail. On the question of whether
installation would occur at the impound lot, she relayed that
it's not the sponsor's intent that vehicles would be left in
impound until installation occurs, but rather that vehicles
would be released upon proof that the DUI offender intends to
install an ignition interlock device, and so the committee might
wish to add language regarding what would constitute sufficient
proof; without such additional language, the onus would be on
the impound company to keep the car and deal with any civil
liability associated with the car, and that's not the intent of
the sponsor. House Bill 271 is a basic bill, a starting point
for discussion purposes.
MS. LUCKY pointed out that existing law regarding ignition
interlock devices provides that the [DUI] fines imposed upon
conviction may be reduced [in order to allow the offender] to
pay for the device, but there is not a similar reduction under
HB 271 because [fines don't accrue until after conviction], and
the bill, again, is addressing conditions of bail; the question
of whether the courts have the authority to reduce the amount of
bail [in order to allow the offender to pay for the device],
however, is something she would be researching further. There
has also been a concern expressed about requiring the use of an
ignition interlock device on a first offense as a condition of
bail, but since the sponsor's intent is to target repeat DUI
offenders, the committee might wish to consider whether that
provision should be altered to apply only on a second or
subsequent offense. Such a change could reduce potential
problems regarding impound, she surmised, since according to her
understanding, the majority of [first-time] DUI offenders do not
go on to reoffend a second time. Furthermore, if [Section 1
were changed such that it] only applied to those who reoffend,
it could mitigate constitutional concerns because the court
could show that the proposed conditions of bail were warranted
in order to protect the community from those who've demonstrated
a propensity for continuing to drink and drive.
VICE CHAIR DAHLSTROM relayed that HB 271 would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 1 HB271 Sponsor Statement.pdf |
HJUD 1/29/2010 1:00:00 PM |
HB 271 |
| 2 HB271 Bill v R.pdf |
HJUD 1/29/2010 1:00:00 PM |
HB 271 |
| 3 HB271 Sectional.pdf |
HJUD 1/29/2010 1:00:00 PM |
HB 271 |
| 4 HB271 Background.pdf |
HJUD 1/29/2010 1:00:00 PM |
HB 271 |
| 01 HB144 ver A.pdf |
HJUD 1/29/2010 1:00:00 PM HL&C 4/8/2009 3:15:00 PM |
HB 144 |
| 02 HB144 Sponsor Statement .pdf |
HJUD 1/29/2010 1:00:00 PM HL&C 4/8/2009 3:15:00 PM |
HB 144 |
| 03 HB144 Sectional Analysis.pdf |
HJUD 1/29/2010 1:00:00 PM HL&C 4/8/2009 3:15:00 PM |
HB 144 |
| 04 HB144 Fiscal Note -LAW-CIV-4-2-09.pdf |
HJUD 1/29/2010 1:00:00 PM HL&C 4/8/2009 3:15:00 PM |
HB 144 |
| 05 HB144 UPC Definition.pdf |
HJUD 1/29/2010 1:00:00 PM HL&C 4/8/2009 3:15:00 PM |
HB 144 |
| 5 HB271-CTS-01.27.10.pdf |
HJUD 1/29/2010 1:00:00 PM |
HB 271 |
| 6 HB271-DOA-OPA-01-26-10.pdf |
HJUD 1/29/2010 1:00:00 PM |
HB 271 |
| 7 HB271-DPS-AST-01-22-10.pdf |
HJUD 1/29/2010 1:00:00 PM |
HB 271 |
| 06 HB144 Letter of support - Hompesch & Evans.pdf |
HJUD 1/29/2010 1:00:00 PM HL&C 4/8/2009 3:15:00 PM |
HB 144 |
| 8 HB271-LAW-01-28-10.pdf |
HJUD 1/29/2010 1:00:00 PM |
HB 271 |
| 9 HB271-LAW-CRIM-01-28-10.pdf |
HJUD 1/29/2010 1:00:00 PM |
HB 271 |