Legislature(1993 - 1994)

03/29/1993 01:00 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HB 61:  LOWER ALCOHOL LIMIT TO 0.08 FOR OMVI'S                               
                                                                               
  Number 540                                                                   
                                                                               
  REPRESENTATIVE JIM NORDLUND, PRIME SPONSOR of HB 61, told                    
  the committee that his bill would lower the blood alcohol                    
  content (BAC) level at which a person would be considered to                 
  be legally drunk while driving, from .10 to .08.  He called                  
  the members' attention to a chart included in the bill                       
  packets which showed the practical effect of that change, in                 
  terms of quantity of drinks, body size, and sex of the                       
  subject.  (A copy of the chart may be found in the House                     
  Judiciary Committee Room, Capitol Room 120, and after the                    
  adjournment of the second session of the 18th Alaska State                   
  Legislature, in the Legislative Reference Library.)                          
                                                                               
  REPRESENTATIVE NORDLUND commented that studies had shown                     
  that driving ability was significantly impaired when a                       
  person had a BAC of approximately .05.  That impairment                      
  included reduced visual acuity and slower reaction time, he                  
  said.  He noted that for commercial motor vehicle operators,                 
  a BAC of higher than .04 was considered legally drunk under                  
  present state law.  He said that HB 61 would not solve the                   
  problem of drunk driving, but could help alleviate the                       
  problem to some extent.                                                      
                                                                               
  REPRESENTATIVE NORDLUND stated that the committee would                      
  probably hear testimony that most drunk driving accidents                    
  involved persons with a BAC of well above .10.  He agreed                    
  with that.  However, he said that HB 61 would make some                      
  difference in making the state's highways safer.  He noted                   
  that his bill would encourage people to act responsibly.                     
                                                                               
  Number 586                                                                   
                                                                               
  REPRESENTATIVE JAMES asked about the effect of the recency                   
  of drinking on the results of a breath test.                                 
                                                                               
  Number 592                                                                   
                                                                               
  CHAIRMAN PORTER replied that a commonly-used defense at DWI                  
  (driving while intoxicated) trials was that a person had had                 
  a lot to drink just before getting in the car, but believed                  
  that he or she would not feel the effects of the alcohol                     
  until after he or she had arrived at home.                                   
                                                                               
  Number 615                                                                   
                                                                               
  REPRESENTATIVE NORDLUND was encouraged to introduce HB 61 by                 
  the Alaska Peace Officers Association in Anchorage.  He                      
  stated that when people were found to have a BAC of .10, it                  
  was difficult to make those prosecutions "stick."  He said                   
  that if there was a lesser penalty, people registering a BAC                 
  of .10 could plead down to that lesser penalty and be                        
  successfully prosecuted for a DWI offense.  He said that                     
  under HB 61's provisions, people found to have a BAC of .08                  
  would be penalized by a fine of at least $250.  He said that                 
  he had crafted the bill in such a manner so as to not impact                 
  the Department of Corrections (DOC).                                         
                                                                               
  REPRESENTATIVE NORDLUND stated that a DWI on one's record,                   
  combined with a fine and probably increased insurance rates                  
  would create a deterrent to driving while under the                          
  influence of alcohol.                                                        
                                                                               
  Number 641                                                                   
                                                                               
  MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,                 
  DEPARTMENT OF LAW (DOL), stated that the DOL supported the                   
  concept of a .08 DWI offense.  She noted that the DOL had                    
  supported similar legislation the year before.  She said                     
  that a growing number of states, especially Western states,                  
  were using .08 as the cut-off for DWI offenses.  She                         
  commented that her department was concerned about the                        
  sentencing provisions contained in section 3 of the bill,                    
  however.  She expressed support for deleting that section.                   
  The reason for that, she said, was that by creating a                        
  separate offense, although still a class A misdemeanor, a                    
  .08 DWI would be considered a "lesser offense" to a .10 DWI                  
  prosecution.                                                                 
                                                                               
  MS. KNUTH said that in that situation, defendants                            
  registering a BAC of .10 might seek to plead down to the                     
  lesser .08 offense, because the lesser offense did not                       
  require mandatory jail time.  She mentioned federal highway                  
  safety incentive funds for which the state could apply.  In                  
  order to receive those funds, she said, the state would have                 
  to impose mandatory jail time, at least 48 hours, for repeat                 
  DWI offenders.  She mentioned that there was currently no                    
  provision for that jail time in HB 61, meaning that passage                  
  of HB 61 would not comply with federal funding requirements.                 
                                                                               
                                                                               
  MS. KNUTH stated that Alaska's appellate courts had said                     
  that a .08 DWI offense was not "substantially similar" to a                  
  .10 DWI offense.  Therefore, she said that Alaska could not                  
  count any .08 DWI conviction from another jurisdiction as a                  
  prior offense for sentencing purposes.  She stated that that                 
  circumstance would continue unless section 3 were deleted                    
  from HB 61.                                                                  
                                                                               
  TAPE 93-45, SIDE A                                                           
  Number 000                                                                   
                                                                               
  MS. KNUTH expressed her opinion that the elements of HB 136,                 
  Drunk Driving and Breath Test Offenses, would dovetail well                  
  with HB 61.                                                                  
                                                                               
  Number 020                                                                   
                                                                               
  REPRESENTATIVE NORDLUND was interested in amending HB 61 so                  
  as to make the state eligible for federal funding.  He asked                 
  Ms. Knuth if there were many acquittals for persons charged                  
  with DWI offenses, whose BAC registered on or near the .10                   
  margin.                                                                      
                                                                               
  Number 034                                                                   
                                                                               
  MS. KNUTH did not know about acquittals, but knew that there                 
  were many cases which were simply not prosecuted because the                 
  BAC was on or near the margin.  She commented that under                     
  current law, a person could be charged with a DWI offense if                 
  his or her BAC registered under .10.  However, she said that                 
  it was difficult to successfully prosecute such cases.  If                   
  the state had a .08 DWI offense, she added, the state                        
  expected that persons who had a BAC at or near the .10                       
  margin would plead down to the lesser .08 DWI offense.  The                  
  state did not expect to make more arrests, she said, just to                 
  end up with more convictions.                                                
                                                                               
  REPRESENTATIVE NORDLUND stated that with HB 61, persons                      
  charged with a .10 DWI offense could plead down to the                       
  lesser .08 charge, whereas under current law, persons with a                 
  BAC at or near .10 were often not prosecuted.                                
                                                                               
  Number 081                                                                   
                                                                               
  MS. KNUTH was concerned about whether or not a .08                           
  conviction would count as a DWI offense, in terms of the                     
  state's repeat offender sentencing laws.  She feared that                    
  HB 61 would lessen the deterrent effect of the state's                       
  current DWI laws.                                                            
                                                                               
  Number 104                                                                   
                                                                               
  CHAIRMAN PORTER asked what would happen in the event that a                  
  person was convicted of a .08 DWI offense, and later was                     
  convicted of a DWI offense, with a BAC of .15.  "Would that                  
  person be treated as a second offender?" he asked.                           
                                                                               
  Number 112                                                                   
                                                                               
  MS. KNUTH believed that person would not be treated as a                     
  second offender.                                                             
                                                                               
  Number 179                                                                   
                                                                               
  CHAIRMAN PORTER stated that HB 61 might inspire some trials,                 
  as defendants sought to get a charge reduced from a .10                      
  offense to a .08 offense.  He said that the state's track                    
  record for convictions, other than those for defendants                      
  whose BAC was at or near .10, was very good.  He expressed                   
  fear that HB 61 might have a negative effect on the state's                  
  track record for DWI convictions.                                            
                                                                               
  Number 203                                                                   
                                                                               
  JUANITA HENSLEY, CHIEF OF DRIVER SERVICES, DIVISION OF MOTOR                 
  VEHICLES (DMV), DPS, said that her department supported a                    
  .08 DWI offense.  However, she had concerns about section 3                  
  of HB 61.  She recommended that the committee delete that                    
  particular section.  She also expressed concerns about                       
  section 5 of the House Transportation Committee's substitute                 
  for the bill.  She stated that federal law allowed states to                 
  keep .10 laws for three years after states became eligible                   
  for certain federal grants.  Then, she added, states had to                  
  change to a .08 DWI law in order to be eligible for those                    
  grants.                                                                      
                                                                               
  Number 260                                                                   
                                                                               
  MS. HENSLEY commented that section 5 of CS HB 61 (TRA) was                   
  therefore a moot point.  She mentioned that states that had                  
  adopted .08 laws had shown a 15.4% reduction in traffic                      
  fatalities.  The State of Maine had shown a 37% decrease in                  
  alcohol-related traffic fatalities, she noted.  But, she                     
  said, that state heavily enforced the new .08 law.                           
                                                                               
  Number 276                                                                   
                                                                               
  CHAIRMAN PORTER asked Ms. Knuth if sections 3 and 5 were to                  
  be removed from the bill, would HB 61 then simply lower the                  
  BAC level at which intoxication was presumed from .10 to                     
  .08.                                                                         
                                                                               
  Number 284                                                                   
                                                                               
  MS. KNUTH replied in the affirmative.                                        
                                                                               
  Number 296                                                                   
                                                                               
  CHAIRMAN PORTER noted that prosecutors would still have the                  
  ability to charge a DWI offense if the driver's BAC was                      
  between .04 and .07, with egregious conduct indicative of                    
  intoxication.                                                                
                                                                               
  Number 303                                                                   
                                                                               
  MS. KNUTH stated that if HB 61 was amended as proposed,                      
  Alaska, for the first time, could treat people with .08 DWI                  
  convictions from other jurisdictions as repeat DWI                           
  offenders.                                                                   
                                                                               
  Number 314                                                                   
                                                                               
  REPRESENTATIVE NORDLUND made a MOTION to DELETE sections 3                   
  and 5 from CSHB 61 (TRA).  There being no objection, IT WAS                  
  SO ORDERED.                                                                  
                                                                               
  Number 339                                                                   
                                                                               
  REPRESENTATIVE NORDLUND commented that the Transportation                    
  Committee had also changed the effective date of HB 61, from                 
  1994 to 1995, in order to take into account the provisions                   
  of section 5.  He suggested changing the effective date back                 
  to January 1, 1994, as it was in the original bill.  He made                 
  a MOTION to AMEND the bill in that manner.                                   
                                                                               
  Number 354                                                                   
                                                                               
  REPRESENTATIVE PETE KOTT OBJECTED, for the purposes of                       
  discussion.  He asked what the intent behind a January 1,                    
  1994 effective date was.                                                     
                                                                               
  Number 361                                                                   
                                                                               
  MS. HENSLEY responded that a January 1, 1994 effective date                  
  would give the DMV more time to change its forms and inform                  
  law enforcement officers of the change in law.  She said                     
  that the DMV could gear up to implement the new law in less                  
  time, if the committee desired to change the effective date.                 
                                                                               
  Number 377                                                                   
                                                                               
  REPRESENTATIVE KOTT stated that a January 1 date would                       
  "catch" drivers out on New Year's Eve.  He would rather see                  
  an earlier effective date or a January 2 effective date in                   
  the bill.                                                                    
                                                                               
  MS. KNUTH commented that September was the usual effective                   
  date for new crime bills.                                                    
                                                                               
  Number 391                                                                   
                                                                               
  REPRESENTATIVE NORDLUND WITHDREW his MOTION.  He made a new                  
  MOTION to CHANGE the effective date to September 1, 1993.                    
                                                                               
  Number 403                                                                   
                                                                               
  CHAIRMAN PORTER supported the proposed new effective date.                   
                                                                               
  Number 412                                                                   
                                                                               
  REPRESENTATIVE KOTT observed that the September 1 effective                  
  date would result in approximately the same time frame as                    
  allowing the bill to go into effect 90 days after being                      
  signed by the governor.                                                      
                                                                               
  Number 427                                                                   
                                                                               
  MS. HENSLEY stated that the September 1, 1993 effective date                 
  would give the DMV sufficient time to prepare to implement                   
  the law.                                                                     
                                                                               
  There being no objection to the amendment, IT WAS ADOPTED.                   
                                                                               

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