Legislature(1993 - 1994)
03/29/1993 01:00 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.