Legislature(2001 - 2002)

03/16/2001 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 4 - OMNIBUS DRUNK DRIVING AMENDMENTS                                                                                       
                                                                                                                                
[Contains some  discussion of  HB 172  regarding the  fiscal note                                                               
component that  adds a  superior court  judge position,  and some                                                               
discussion of SB 105 regarding  reimbursement from the offender's                                                               
permanent fund dividend (PFD).]                                                                                                 
                                                                                                                                
Number 0065                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG announced  that  the committee  would hear  HOUSE                                                               
BILL NO.  4, "An Act  relating to offenses involving  operating a                                                               
motor vehicle, aircraft, or watercraft  while under the influence                                                               
of  an alcoholic  beverage or  controlled substance;  relating to                                                               
implied   consent  to   take  a   chemical   test;  relating   to                                                               
registration of motor vehicles;  relating to presumptions arising                                                               
from the  amount of alcohol  in a  person's breath or  blood; and                                                               
providing  for an  effective date."   [Before  the committee  was                                                               
CSHB 4(TRA).]                                                                                                                   
                                                                                                                                
Number 0207                                                                                                                     
                                                                                                                                
JANET SEITZ, Staff to Representative  Norman Rokeberg (sponsor of                                                               
HB  4),  Alaska State  Legislature,  explained  that CSHB  4(TRA)                                                               
contains  an omission  in that  the refusal  statute [provisions]                                                               
were not amended  to be in compliance with changes  being made to                                                               
the   DUI/DWI   (driving   under  the   influence/driving   while                                                               
intoxicated)  statutes.   She added  that there  is an  amendment                                                               
being drafted to  rectify that omission.  She  mentioned that the                                                               
agencies  did  not foresee  any  additional  fiscal impact  as  a                                                               
result  of  the forthcoming  amendment  because  they, like  she,                                                               
thought  those  changes had  already  been  incorporated in  CSHB
4(TRA).   She noted that  some recently revised fiscal  notes had                                                               
been  provided   by  the  departments   but  had  not   yet  been                                                               
distributed to the committee.                                                                                                   
                                                                                                                                
CHAIR ROKEBERG  mentioned that the  current fiscal  notes totaled                                                               
under  $8 million,  and  he thanked  the  representatives of  the                                                               
administration for their  work on reducing the fiscal  notes.  He                                                               
also remarked  that Representative  Ogan was viewing  the meeting                                                               
via Gavel to Gavel Alaska from his hospital room.                                                                               
                                                                                                                                
Number 0436                                                                                                                     
                                                                                                                                
DOUG  WOOLIVER,  Administrative Attorney,  Administrative  Staff,                                                               
Office of  the Administrative Director, Alaska  Court System (ACS                                                               
or the  "court"), said that per  the court's policy, ACS  did not                                                               
have a position on HB 4.   He added that there were two principal                                                               
reasons  why the  court did  not typically  wade into  the public                                                               
policy  debates  regarding  legislation.     The  first  is  that                                                               
generally  the   establishment  of  public  policy   through  the                                                               
legislative process  falls under the purview  of the legislature,                                                               
and the court would  prefer to leave it that way.   The second is                                                               
related in that many of the  bills passed by the legislature find                                                               
their way  to the  court system  as challenges,  and it  would be                                                               
inappropriate for the  court to be addressing an issue  if it had                                                               
already  taken  a   public  stand  either  for   or  against  it.                                                               
Therefore,  he  said,  his  remarks   would  be  limited  to  the                                                               
anticipated impact of HB 4 on [the ACS].                                                                                        
                                                                                                                                
MR.  WOOLIVER explained  that  there are  two  principal ways  in                                                               
which legislation  impacts the  ACS:  it  either changes  the way                                                               
[the ACS] does  business, or it changes the number  of cases that                                                               
come before  [the ACS].   From those two perspectives,  [the ACS]                                                               
has analyzed  three principal areas  in which  HB 4 will  have an                                                               
impact   on  the   court.     First,  the   .08  [blood   alcohol                                                               
concentration  (BAC)]  provision will  impact  [the  ACS] to  the                                                               
extent  that it  brings  cases before  the  court that  otherwise                                                               
would not have been there.   Based on analysis from the executive                                                               
branch, a 10  percent increase in case filings  is anticipated as                                                               
a result of changing [the BAC limit]  to .08.  He added that this                                                               
increase  is consistent  with what  other states  have seen  upon                                                               
changing [BAC  limits] from .10  to .08.   Assuming a  10 percent                                                               
increase  from 5,000  misdemeanor [cases]  and 283  felony cases,                                                               
the  result is  500  new  misdemeanor cases  and  roughly 28  new                                                               
felony  cases per  year.   He specified  that [the  ACS's] fiscal                                                               
note  is based  on those  estimates, which  equate to  roughly 40                                                               
percent, or  five months  out of  the year,  of a  district court                                                               
judge's time with his/her staff.                                                                                                
                                                                                                                                
MR. WOOLIVER said that the second area  of impact of HB 4 on [the                                                               
ACS] relates to the felony provisions.   Currently, it is a class                                                               
C felony  to be  convicted of DWI  if previously  convicted twice                                                               
within the previous  five years.  Through a  five-year "phase in"                                                               
program, HB  4 builds that  up to what is  referred to as  a ten-                                                               
year "look-back," so that by 2006,  if a person has been arrested                                                               
for a third DWI within a  ten-year period, he/she would be guilty                                                               
of a class C  felony.  He noted that the  Department of Law (DOL)                                                               
has estimates  based on  its own  statistics and  other executive                                                               
branch [agencies']  statistics regarding how many  new cases [the                                                               
ACS] would likely see.                                                                                                          
                                                                                                                                
Number 0652                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ interjected to  ask if "new cases" meant                                                               
new cases  filed as DWIs  that in past  might have been  filed as                                                               
reckless or negligent driving.                                                                                                  
                                                                                                                                
MR. WOOLIVER explained that he  was referring to cases that would                                                               
have been  misdemeanor DWIs but  [under HB  4] would be  filed as                                                               
felony DWIs.                                                                                                                    
                                                                                                                                
REPRESENTATIVE BERKOWITZ, on the  previous point of lowering [the                                                               
BAC limit] to .08,  asked if those new cases would  be new to the                                                               
system, or just charged differently.                                                                                            
                                                                                                                                
MR. WOOLIVER specified that .08-misdemeanor  [cases] would be new                                                               
to  the  system  -  charges  that would  not  have  been  brought                                                               
otherwise - but  in some instances, the .08  [limit] would create                                                               
felonies because  the offender  would not  have been  charged for                                                               
his/her  third offence  without the  change to  .08.   Therefore,                                                               
there would  be an overlap of  the latter, but the  estimated 500                                                               
misdemeanor [cases] would be new [to the system].                                                                               
                                                                                                                                
MR. WOOLIVER returned  to the felony [look-back]  provision of HB
4 and  said that the  DOL estimated that  [the ACS] would  see 45                                                               
new felony cases a year, each year,  for the next five years.  As                                                               
a result,  there would be 45  new felony cases the  first year of                                                               
the program; 90 new felony cases  the second year; 135 new felony                                                               
cases the third  year; 180 new felony cases the  fourth year; and                                                               
up to  225 new felony cases  during the fifth year.   Because the                                                               
Anchorage  superior  court  is already  at,  or  beyond,  maximum                                                               
capacity  for  felony  caseloads,  he  explained,  [the  ACS]  is                                                               
requesting a  new superior court  judge to help absorb  the extra                                                               
work  brought  on  by the  aforementioned  estimated  new  felony                                                               
cases.   He added that  currently in Anchorage, a  district court                                                               
judge temporarily  sits in  as a superior  court judge  to handle                                                               
all of  the felony  DWIs -  approximately 100 cases  a year.   He                                                               
explained that the last time a  superior court judge was added in                                                               
Anchorage was in  1985, and since that time there  has been a 100                                                               
percent increase in felony filings.                                                                                             
                                                                                                                                
Number 0812                                                                                                                     
                                                                                                                                
MR. WOOLIVER said that  the third area of impact of  HB 4 on [the                                                               
ACS]  would  be the  forfeiture  provisions.   Mandatory  vehicle                                                               
forfeiture  for  all second  and  subsequent  DWI convictions  is                                                               
called for in HB 4.  He  explained that the DOL is estimating 800                                                               
of these forfeiture cases per year,  and each case is entitled to                                                               
a hearing.   Because  these types of  hearings are  fairly quick,                                                               
[the  ACS] estimates  approximately 15  minutes per  hearing, but                                                               
still, 800  hearings at 15  minutes per  hearing is 200  hours of                                                               
hearings.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  BERKOWITZ   expressed  amazement  that   a  court                                                               
hearing could occur in 15 minutes.                                                                                              
                                                                                                                                
MR. WOOLIVER  warned that it  is always a gamble  when estimating                                                               
court time  for hearings, but  several judges whom he  had spoken                                                               
with said that forfeiture cases  result in fairly quick hearings.                                                               
Returning to the  point of fiscal impact, Mr.  Wooliver said that                                                               
a lot of  the cost of [the vehicle forfeiture  provision] will be                                                               
absorbed in the new superior  court [judge] position since all of                                                               
the felony [DWI cases] will  result in vehicle forfeiture because                                                               
of  second, or  subsequent, DWI  offenses.   Therefore, the  only                                                               
additional expense  will be due  to the 500 new  misdemeanor [DWI                                                               
cases].                                                                                                                         
                                                                                                                                
REPRESENTATIVE  MEYER  asked  if  monies  received  from  selling                                                               
[forfeited] vehicles could offset  the additional expenses of the                                                               
forfeiture cases.                                                                                                               
                                                                                                                                
MR.  WOOLIVER  explained that  any  monies  received either  from                                                               
selling forfeited vehicles or from  fines would go to the general                                                               
fund, not directly to [the ACS].                                                                                                
                                                                                                                                
CHAIR  ROKEBERG  said   he  had  concern  about   the  number  of                                                               
forfeitures, particularly  given the fact that  the Anchorage and                                                               
Fairbanks  jurisdictions  currently  handle  second-[DWI]-offense                                                               
forfeitures.  He  pointed out that the bulk of  the estimated 800                                                               
new  forfeiture cases  are already  undertaken  at the  municipal                                                               
level.                                                                                                                          
                                                                                                                                
Number 0985                                                                                                                     
                                                                                                                                
MR.  WOOLIVER  explained that  the  [estimated]  numbers did  not                                                               
include  municipal  forfeiture  cases;   they  are  estimates  of                                                               
forfeiture  cases instituted  for state  offenses, not  municipal                                                               
offenses.                                                                                                                       
                                                                                                                                
CHAIR ROKEBERG noted that prior  testimony on HB 4 suggested that                                                               
the method  for forfeiture did not  have to result in  a criminal                                                               
action, and although  he acknowledged that the  DOL had testified                                                               
in  favor  of  criminal  proceedings  for  forfeiture  cases,  he                                                               
suggested  that forfeiture  as a  civil proceeding  could perhaps                                                               
diminish the impact.                                                                                                            
                                                                                                                                
MR. WOOLIVER responded  that [the ACS's] fiscal note  is based on                                                               
the current version  of HB 4 [CSHB 4(TRA)], which  is not crafted                                                               
in   the  same   fashion   as  the   [Anchorage  and   Fairbanks]                                                               
municipalities' administrative [forfeiture ordinances].                                                                         
                                                                                                                                
CHAIR ROKEBERG mentioned  that he would be  offering an amendment                                                               
"to  go that  route,  to  help lower  the  fiscal  costs and  the                                                               
impacts on the  courts."  He inquired if such  an amendment would                                                               
have an impact on [the ACS's] fiscal note.                                                                                      
                                                                                                                                
MR. WOOLIVER  responded that he  thought such an  amendment would                                                               
"just about  do away with that  portion of the fiscal  note."  He                                                               
added that  there are other aspects  of [HB 4] that  will have an                                                               
impact  on [the  ACS] but  which  are not  significant enough  to                                                               
warrant  a fiscal  note.    He explained  that  typically when  a                                                               
penalty for  a crime is  increased - such as  occurs with HB  4 -                                                               
so, too,  is the amount  of court  work, primarily because  it is                                                               
more  onerous for  the  defendant to  be  convicted; thus  he/she                                                               
tends to  fight harder against a  conviction.  He went  on to say                                                               
that  not   only  trials  but  also   pretrial  litigation  would                                                               
increase.    He mentioned  the  manslaughter  provisions and  the                                                               
aggravator  provisions as  examples  of the  type  of thing  that                                                               
people would be willing to fight harder against.                                                                                
                                                                                                                                
REPRESENTATIVE MEYER asked for an  explanation of the distinction                                                               
between  tickets  written  for  violation of  a  local  ordinance                                                               
versus  a  state  law.     He  inquired  whether  Anchorage  [and                                                               
Fairbanks] police officers might be  tempted to write DWI tickets                                                               
against  the  state law  instead  of  the  local law  because  of                                                               
budgetary constraints at the municipal level.                                                                                   
                                                                                                                                
MR.  WOOLIVER   replied  that   the  Municipality   of  Anchorage                                                               
generates  revenue  from  fines, fees,  and  forfeitures  charged                                                               
against  municipal  offenses.   He  said  he supposed  that  each                                                               
municipality has  to decide at what  point, on any given  law, it                                                               
would  be cheaper  to  charge a  state offense.    He added  that                                                               
currently, the Municipality of Anchorage  has chosen to adopt and                                                               
pursue a  whole variety  of ordinances  that closely  model state                                                               
law.  He  commented that he did not presently  have concerns that                                                               
municipalities would try  to pass the costs [of  DWI offenses] on                                                               
to the  state.   He mentioned that  occasionally [the  ACS] talks                                                               
about  charging municipalities  for the  use of  the state  court                                                               
system, and  in fact, he noted,  years ago there used  to be fees                                                               
for such use.                                                                                                                   
                                                                                                                                
Number 1330                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG asked for  comments regarding mandatory forfeiture                                                               
provisions at the municipal level  for second DWI offenses versus                                                               
the  state's [current]  "permissive"  forfeiture  provision.   He                                                               
voiced  concern   that  that  distinction  resulted   in  unequal                                                               
treatment  with  regard to  the  application  of penalties  being                                                               
dependent on what part of the state the offense occurred in.                                                                    
                                                                                                                                
MR.  WOOLIVER  responded that  there  is  a provision  in  Alaska                                                               
statute  that   allows  municipalities   to  have   a  forfeiture                                                               
provision,  which in  turn could  provide  for stiffer  penalties                                                               
than the  state's discretionary penalties.   He acknowledged that                                                               
under  those circumstances  (and as  prior testimony  indicated),                                                               
some offenders find it better to  be charged with a state offense                                                               
rather than a municipal offense  if the municipal offense results                                                               
in vehicle forfeiture.   He noted that while  the distinction did                                                               
not provide for equal treatment, it was the law.                                                                                
                                                                                                                                
CHAIR ROKEBERG  offered that HB  4 is endeavoring to  "level that                                                               
playing  field"  by  making forfeiture  mandatory  at  the  state                                                               
level.  He added that he  found it incredible that a second [DWI]                                                               
offense [at  the municipal  level] has a  harsher penalty  than a                                                               
third  offense (even  though it  is a  felony charge)  because it                                                               
then becomes a state offense.                                                                                                   
                                                                                                                                
REPRESENTATIVE   JAMES  said   she  agreed.     She   added  that                                                               
municipalities should mirror state law  even if it means that the                                                               
municipal penalties are lowered, although  she also said that she                                                               
believes that  [the state] needs  to be  [at least as  severe as]                                                               
"anyone else."   She asked,  if a  person were charged  under the                                                               
municipal ordinance for  a DWI offense, whether  a subsequent DWI                                                               
offense  that  occurred  outside   of  a  municipality  would  be                                                               
considered a  second offense and  therefore subject  the offender                                                               
to mandatory vehicle forfeiture.                                                                                                
                                                                                                                                
Number 1520                                                                                                                     
                                                                                                                                
MR.  WOOLIVER responded  that to  his  understanding that  person                                                               
would be charged "under the  state offense, or a comparable one,"                                                               
such as a municipal offense.                                                                                                    
                                                                                                                                
REPRESENTATIVE JAMES noted that if  that person were close to the                                                               
edge of the city limits, he/she  might endeavor to cross over the                                                               
boundary line to ensure one type  of penalty versus another for a                                                               
second offense.                                                                                                                 
                                                                                                                                
CHAIR ROKEBERG observed that that  circumstance might result in a                                                               
high-speed chase.  And on that  point, he asked if currently, DWI                                                               
offenses that occur in other  jurisdictions in other states would                                                               
count [towards the number of convictions a person has received].                                                                
                                                                                                                                
MR. WOOLIVER  said that to  his understanding,  those convictions                                                               
would count, but  only if the other state was  also a ".10 state"                                                               
[as  Alaska is  now]; otherwise,  it  would not  be considered  a                                                               
comparable law.                                                                                                                 
                                                                                                                                
CHAIR  ROKEBERG asked  for  a more  in-depth  explanation of  the                                                               
duplication  in  HB  4  and   [HB  172]  regarding  the  cost  of                                                               
personnel.                                                                                                                      
                                                                                                                                
MR.  WOOLIVER noted  that all  of  the [proposed]  DWI bills  are                                                               
"somewhat  of a  package," and  that there  is "overlap"  between                                                               
them.  He explained that HB  172 calls for a superior court judge                                                               
[position]  in  both Anchorage  and  Bethel;  the superior  court                                                               
judge in  Anchorage would  handle the  workload generated  by the                                                               
therapeutic  court  (created by  [HB  172]),  which is  aimed  at                                                               
felony-DWI offenders.   He further  explained that  although both                                                               
bills include in their fiscal  notes funding for a superior court                                                               
judge, one  such judge can do  the workload created by  both HB 4                                                               
and HB 172.                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  asked Mr.  Wooliver  to  explain his  memorandum                                                               
regarding the issues of collections  and "fine revenue" generated                                                               
by HB 4.                                                                                                                        
                                                                                                                                
Number 1688                                                                                                                     
                                                                                                                                
MR. WOOLIVER explained that per  Ms. Seitz's request, the ACS had                                                               
attempted  to  estimate  how much  revenue  the  increased  fines                                                               
provided for in HB 4 would  generate.  He added, however, the ACS                                                               
does not  have a computer  system designed  to make that  kind of                                                               
estimate,  and,  therefore,  the information  gleaned  from  both                                                               
paper  records  and  computer  records  produced  a  very  rough,                                                               
conservative  estimate of  $300,000 in  additional revenues.   He                                                               
noted  that  the  personnel who  compiled  that  information  had                                                               
suggested that he not rely too heavily on that number.                                                                          
                                                                                                                                
CHAIR ROKEBERG  commented that  he was  disappointed to  see that                                                               
those projections  were based  on a  35 percent  collection rate,                                                               
particularly  given  that  HB  4   attempts  to  place  liens  on                                                               
permanent fund dividends (PFDs).                                                                                                
                                                                                                                                
MR.  WOOLIVER  explained  that  to  his  understanding,  that  35                                                               
percent is  the money that [the  ACS] would bring in  from people                                                               
who pay  their fines  directly to [the  ACS].   Delinquent fines,                                                               
however, are  forwarded to the [Collections  and Support Section]                                                               
of the  DOL, but  beyond that,  [the ACS]  does not  maintain any                                                               
record of  those monies owed;  he suggested that [the  DOL] would                                                               
be  able to  give a  more accurate  accounting of  the collection                                                               
rate.                                                                                                                           
                                                                                                                                
CHAIR ROKEBERG said he was  surprised that the estimate of income                                                               
generated by HB  4 was not substantially greater  since the fines                                                               
for a first offense had been raised.                                                                                            
                                                                                                                                
MR.  WOOLIVER cautioned  against  "going to  the  bank with  this                                                               
estimate."   He  added that  typically  [the ACS]  does not  make                                                               
projections because  "we're not  ... in the  loop on  the revenue                                                               
generation side."                                                                                                               
                                                                                                                                
Number 1867                                                                                                                     
                                                                                                                                
CANDACE BROWER,  Program Coordinator/Legislative  Liaison, Office                                                               
of the  Commissioner, Department of Corrections  (DOC), said that                                                               
it is  no secret  that increasing  penalties and/or  creating new                                                               
crimes has  a direct  impact on the  DOC, particularly  in fiscal                                                               
areas.  She  explained that the first  area [of HB 4]  that has a                                                               
fiscal  impact   on  the  DOC  is   the  manslaughter  provision.                                                               
However, she  noted that it would  not be until fiscal  year 2005                                                               
that the DOC would experience that impact.                                                                                      
                                                                                                                                
MS. BROWER  went on to say  that based on DOL  figures, [the DOC]                                                               
estimated approximately nine  cases a year in  which somebody can                                                               
be charged  with negligent homicide  or manslaughter  relating to                                                               
vehicle [use].  She added that  there is usually also one [murder                                                               
in the  second degree] charge, per  year.  By assuming  that five                                                               
of those  [nine cases]  would be  affected by  the change  in the                                                               
manslaughter  statute, then  in fiscal  year 2005  the DOC  would                                                               
begin to see  the effects of increased sentencing.   Referring to                                                               
increases in fiscal years 2006 and  2007, she noted that that was                                                               
due   to   the   phenomenon   of  "stacking"   that   occurs   in                                                               
[correctional]  facilities.   People  who are  convicted in  2002                                                               
will create a fiscal impact in  2005, and those convicted in 2003                                                               
will create a  fiscal impact in 2006; however,  the fiscal impact                                                               
from 2005  will carry over  to 2006.   She said that  the [fiscal                                                               
increase] levels off  in fiscal year 2006 at  an estimated amount                                                               
of $211,640.                                                                                                                    
                                                                                                                                
MS. BROWER  also said that  throughout the [DOC's]  fiscal notes,                                                               
where it is  not in statute that someone must  serve his/her time                                                               
in  a community  residential  center (CRC),  she  had utilized  a                                                               
combined figure of half time in a  hard bed (at a current cost of                                                               
$112/day)  and half  time in  a  CRC bed  (at a  current cost  of                                                               
$64/day).   This calculation is  based on the assumption  that by                                                               
the time someone  gets into his/her fifth year of  a sentence, it                                                               
is  conceivable  that  he/she would  be  transitioning  into  the                                                               
community.   The  resulting  calculation came  to  $88/day.   She                                                               
explained  that   the  term   "hard  bed"   is  used   for  state                                                               
correctional  facilities, and  the term  "soft bed"  is used  for                                                               
community residential centers (CRCs) - halfway houses.                                                                          
                                                                                                                                
MS. BROWER, turning  to the .08 [BAC] provision as  the next area                                                               
to fiscally impact  the DOC, said the DOC, the  DOL, the Division                                                               
of Motor Vehicles  (DMV), and other agencies are  estimating a 10                                                               
percent increase in convictions.  This  is based on the number of                                                               
people who  fall into the category  of .08-.10 [BAC], as  well as                                                               
those who  would not have  been convicted  but for the  change in                                                               
the  law.    She  noted   that  the  DOC  had  4,118  misdemeanor                                                               
convictions in  fiscal year 2000.   She estimated there  would be                                                               
413  new  misdemeanor  convictions  for a  .08  [BAC]  provision.                                                               
Further, she  had used  DMV's statistics  from 2000  to calculate                                                               
percentages  of first-,  second-, and  third-time offenders,  and                                                               
those records,  for example,  showed that  69 percent  of license                                                               
revocations  were  for first-time  offenders.    She went  on  to                                                               
explain that  her calculations resulted  in estimates of  285 new                                                               
first-time offenders for 3-day sentences  at $64/day, for a total                                                               
of $54,720;  83 second-time  offenders for  an average  of 20-day                                                               
sentences  at  $64,  for  a  total  of  $106,240;  33  third-time                                                               
offenders for two-thirds time in a  CRC bed and one-third time in                                                               
a hard bed, for a total  of $287,742; 8 fourth-time offenders for                                                               
a total of  $90,000; and [4] fifth-time offenders for  a total of                                                               
$52,800.  The grand total for misdemeanants came to $591,614.                                                                   
                                                                                                                                
Number 2302                                                                                                                     
                                                                                                                                
MS. BROWER  said she had  used similar  [statistical] assumptions                                                               
for felons,  and estimated 200  convicted felons for  fiscal year                                                               
2000.   She had  used the  formula of $88/day  for an  average of                                                               
352-day sentences,  and the  result was  $619,520.   The combined                                                               
estimates for  felons and misdemeanants totaled  $1,211,134.  She                                                               
went on to  say that anytime there are more  felons, the need for                                                               
probation supervision also goes up,  and that figure is reflected                                                               
in  the fiscal  note.   She also  said that  assuming a  .08 [BAC                                                               
limit]  will  provide  some  relief  in  the  rate  of  vehicular                                                               
homicides, she estimated a savings  of $61,320 starting in fiscal                                                               
year 2003.                                                                                                                      
                                                                                                                                
CHAIR ROKEBERG surmised that the  calculations in the fiscal note                                                               
regarding  the diversion  program for  offenders between  .08 and                                                               
[.099 BAC]  were achieved  "by not allowing  the three  days in."                                                               
He mentioned that he was rethinking the [diversion program].                                                                    
                                                                                                                                
REPRESENTATIVE BERKOWITZ, on the  point [of the diversion program                                                               
for  offenders who  fall  between  .08 and  .099  BAC], said  his                                                               
suspicion was that it would  require a lot of intensive courtroom                                                               
action,  because  people   will  work  hard  to   get  into  that                                                               
diversionary  range.    There  will be  more  motions,  and  more                                                               
challenges   to   the   intoximeters,  the   experts,   and   the                                                               
calibrations, he added.                                                                                                         
                                                                                                                                
CHAIR  ROKEBERG suggested  that the  committee "re-institute  the                                                               
time on  the bill  ... but  not the diversion  itself."   He said                                                               
that he still thought the  diversion [program] had merit in terms                                                               
of allowing people  to keep a first-time offense  off the record.                                                               
He  noted that  he was  surprised  at the  modest difference  the                                                               
diversion program made to the fiscal estimates.                                                                                 
                                                                                                                                
MS.  BROWER  acknowledged  that one  would  hope  [the  diversion                                                               
program] would have a greater  impact, but after further thought,                                                               
would realize  it really  doesn't.   On the  point of  the fiscal                                                               
impact of  not implementing  the diversion  program, she  said it                                                               
would not  cost a great  deal more, although  she was not  one to                                                               
encourage incarceration.                                                                                                        
                                                                                                                                
TAPE 01-33, SIDE B                                                                                                              
Number 2468                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  said  his  concern  there,  after  talking  with                                                               
several  people, was  that maybe  the mandatory  jail time  for a                                                               
first-time offender  was what  made the  most impression  on that                                                               
offender,  and thus  reduced the  recidivism rate.   He  surmised                                                               
that  maintaining  the  mandatory  jail  time  for  a  first-time                                                               
offense would not do damage to the concept of diversion.                                                                        
                                                                                                                                
MS. BROWER noted  that by mandating the jail  time, the incentive                                                               
of  suspended imposition  of sentence  (SIS) is  taken away;  the                                                               
person always  has it  on his/her  record.   "We forgive,  but we                                                               
don't forget,"  she added.   On the  point of inmates  paying for                                                               
incarceration, Ms.  Brower explained  that to  her understanding,                                                               
the  required payment  of $1,000  for the  cost of  incarceration                                                               
(which HB 4  increases to $2,000) applies  only to misdemeanants.                                                               
Taking all of the above  calculations into account with regard to                                                               
the  .08   provision,  she  estimated   an  increased   cost  for                                                               
incarceration of $1,184,254 for fiscal year 2002.                                                                               
                                                                                                                                
MS  BROWER,  referring  to  page  1 of  the  DOC's  fiscal  note,                                                               
confirmed that the  gross note is $5,108,200 and  the fund source                                                               
from other  areas besides the  general fund (GF)  shows $414,000.                                                               
Thus the  funds needed  from the GF  total $4,693,600  for fiscal                                                               
year   2002.     She   explained   that   the  $1,065,600   under                                                               
"Contractual"  in  the  Operating  Expenditures  column  reflects                                                               
substance abuse treatment services,  which the DOC contracts out,                                                               
and  that  the  $4,042,600  under  "Miscellaneous"  reflects  the                                                               
estimated  cost  of  incarceration,  which  includes  just  about                                                               
everything else such as employees and the CRC contracts.                                                                        
                                                                                                                                
Number 2202                                                                                                                     
                                                                                                                                
MS. BROWER, referring  to the increase in  sentencing for second-                                                               
time  offenders from  20 days  to 30  days as  another area  with                                                               
fiscal implications for the DOC,  pointed out that a provision in                                                               
HB 4  says that an  offender can still  get a 20-day  sentence if                                                               
he/she serves  10 days doing  community work service (CWS).   She                                                               
said  [the  DOC] was  not  sure  how  that [provision]  would  be                                                               
administered, or  who would be  responsible [for  the offenders],                                                               
and thus did not provide a  fiscal note for the administration of                                                               
that provision.   She added that [the DOC] also  was not sure who                                                               
would take  advantage of  that provision, "so  we said  50/50" in                                                               
terms of serving [jail] time versus CWS.                                                                                        
                                                                                                                                
CHAIR ROKEBERG  explained that to  his understanding  and belief,                                                               
the courts  would handle  that provision,  and would  also verify                                                               
that  [the CWS]  was done.   He  added that  he did  not envision                                                               
establishing a "bureaucratic point"  to which [offenders] have to                                                               
report.  He asked Mr.  Wooliver to confirm whether [verification]                                                               
was normally done by the judge.                                                                                                 
                                                                                                                                
MR. WOOLIVER responded that he was  not entirely sure if that was                                                               
the case but he would check.                                                                                                    
                                                                                                                                
MS.  BROWER  went  on  to  say  that  [the  DOC]  estimated  that                                                               
potentially  half  of  the second-time  offenders  who  would  be                                                               
eligible to  serve 10 days  of CWS would  do so, while  the other                                                               
half  would choose  simply  to complete  the  30-days' jail  time                                                               
because they could  conceivably get "good time"  on the sentence.                                                               
Thus, [the  DOC] estimated an  increased cost of $184,576  for an                                                               
additional seven days,  which is what this  provision amounts to,                                                               
she said.                                                                                                                       
                                                                                                                                
CHAIR  ROKEBERG  commented that  he  would  be surprised  if  the                                                               
majority of those  second-time offenders did not opt  for the 10-                                                               
day CWS.                                                                                                                        
                                                                                                                                
MS. BROWER  addressed the  next area  of HB 4  that had  a fiscal                                                               
impact  on  the  DOC,  the ten-year  phase-in  of  the  look-back                                                               
provision.   She explained that  based on the DOL's  figures, the                                                               
DOC  estimated an  increased conviction  rate of  38 felons  each                                                               
year.    The  increase  in  days  of  incarceration  would  total                                                               
$535,040  the first  year, and  would increase  each year  as the                                                               
full ten-year look-back  was reached.  She added  that during the                                                               
fifth year  of the phase-in,  the DOC  estimates 190 felons  at a                                                               
cost of $2,675,200.                                                                                                             
                                                                                                                                
MS. BROWER, in response to  several questions from Chair Rokeberg                                                               
regarding the  details of  the DOC's fiscal  note, said  that she                                                               
had used the figure of $88/day  in most of her calculations.  She                                                               
also said  she had  used the current  number of  felony offenders                                                               
per year, and then added  the estimated additional offenders that                                                               
the DOC  would see as a  result of instituting the  .08 [BAC] and                                                               
the  look-back  provision.    The   result  was  240  new  felony                                                               
offenders for the first year,  and she further calculated that 80                                                               
percent  of  those  felons  would  be  third-time  offenders,  15                                                               
percent would  be fourth-time offenders,  and 5 percent  would be                                                               
fifth-time  offenders;  she  multiplied   these  results  by  the                                                               
additional  days mandated  by HB  4 for  the different  levels of                                                               
felony offenses.   She noted,  however, that in  her calculations                                                               
she  gave felons  the benefit  of  "good time"  based on  current                                                               
data.     She  offered   to  provide   further  details   of  her                                                               
calculations, as  well as  alternate numbers  reflecting possible                                                               
amendments, to Ms. Seitz.                                                                                                       
                                                                                                                                
Number 1861                                                                                                                     
                                                                                                                                
MS.  BROWER commented  that  as the  penalties  increase and  the                                                               
number of  offenders increases, so,  too, will the  fiscal impact                                                               
on DOC  increase.  She added,  however, that none of  her current                                                               
calculations  include   inflationary  costs.     And   while  she                                                               
acknowledged that HB 4 already has  a very steep fiscal note, she                                                               
said she has not been able  to formulate a calculation that takes                                                               
into account the  extra work involved such  as increased bookings                                                               
and other  things that take a  toll over time, nor  has she taken                                                               
into  consideration   the  cost  of  increasing   the  number  of                                                               
facilities that may be needed for the increase in offenders.                                                                    
                                                                                                                                
MS. BROWER, on the next area of  HB 4 that has a fiscal impact on                                                               
the DOC,  explained that  according to a  "snapshot" done  by the                                                               
DOC in  October 2000, the  provision removing the  ten-year look-                                                               
back for second-time offenders would  only affect about 3 percent                                                               
of those offenders.  Under  current statute, a person who commits                                                               
a second  offense within  ten years  is considered  a second-time                                                               
offender,  but  if  that  person's  first  offense  had  occurred                                                               
further back  than ten years,  he/she is treated as  a first-time                                                               
offender.  Section 32 would  remove that ten-year look-back; thus                                                               
all second offenses  would be treated as such,  regardless of how                                                               
long  ago they  occurred.   Because  of the  small percentage  of                                                               
second-time  offenders  this  provision  would  affect,  the  DOC                                                               
calculated an estimated increase of  only $22,464.  She confirmed                                                               
for  Chair  Rokeberg  that  were  that  look-back  provision  for                                                               
second-time  offenders  to remain  in  statute,  only $22,464  is                                                               
estimated as savings to HB 4's  fiscal note.  She added that this                                                               
calculation  is  based on  the  assumption  that most  first-time                                                               
offenders do not  re-offend; thus, for a person to  have a second                                                               
DWI in 11 years,  versus 10 years, did not seem  to be a frequent                                                               
occurrence.                                                                                                                     
                                                                                                                                
MS. BROWER then discussed the  provision that removed eligibility                                                               
for good-time deductions, for a  person who has failed to satisfy                                                               
court-ordered treatment,  as another area  of HB 4 with  a fiscal                                                               
impact on DOC.  She  explained that while this provision (Section                                                               
33) would  have a fiscal impact  on the DOC, that  impact was not                                                               
quantifiable.  She pointed out  that first-time offenders are not                                                               
eligible for  good time -  those offenders are mandated  to serve                                                               
72 hours.   She noted that current statute says  that if a person                                                               
has  been  court-ordered  to  treatment,   and  he/she  fails  to                                                               
complete that treatment, then he/she  is subject to revocation of                                                               
probation/parole - he/she  loses "good time."  She  said that she                                                               
had concern  that the good-time  provision would be removed  in a                                                               
"blanket" manner.   She said  she thought that  [current] statute                                                               
covers [the issue of good  time deductions] fairly well for those                                                               
offenders who are  required to do intensive  treatment.  However,                                                               
the people who are required to  do three days (or twenty days) on                                                               
first-time  (or second-time)  offenses  - with  the exception  of                                                               
treatment required by the Alcohol  Safety Action Program (ASAP) -                                                               
are  not really  exposed to  treatment.   But once  a person  has                                                               
become a  felon - through  a third  or subsequent offense  - then                                                               
the judge  can impose  court-ordered treatment,  and the  loss of                                                               
good  time can  then  be  used as  an  incentive  to comply  with                                                               
treatment.  She added that while  she suspected that the issue of                                                               
good-time deductions was already  covered in current statute, she                                                               
wanted to voice  her concern about the wording in  HB 4 regarding                                                               
this issue.                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG agreed to look at that issue more closely.                                                                       
                                                                                                                                
MS. BROWER next mentioned the  topic of estimates of revenue from                                                               
inmates paying up to $2,000 of their treatment costs.                                                                           
                                                                                                                                
Number 1551                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  asked if the  cap could  be raised or  removed on                                                               
the  amount  offenders   are  required  to  pay   for  their  own                                                               
treatment.    He  noted  that   there  was  a  restitution  issue                                                               
regarding state provided treatment.   He also inquired what could                                                               
be expected if the offender had medical insurance.                                                                              
                                                                                                                                
MS.  BROWER explained  that  currently, [the  DOC]  is unable  to                                                               
collect on  Medicaid, and as far  as she knew, [the  DOC] did not                                                               
receive reimbursement from insurance companies.                                                                                 
                                                                                                                                
CHAIR ROKEBERG  interjected and  said that  [the DOC]  should [be                                                               
able to  receive reimbursement from insurance  companies] as long                                                               
as the  policies covered  treatment, and  he suggested  that that                                                               
issue should be researched further.                                                                                             
                                                                                                                                
MS. BROWER  noted, for example,  that all of [the  DOC's] inmates                                                               
who are  covered by  the "Indian Health  Program" do  not receive                                                               
[treatment  benefits] while  they are  incarcerated.   Therefore,                                                               
while  she said  she did  not know  a lot  about this  particular                                                               
topic, she  did not think  [the DOC] was  able to collect  on the                                                               
treatment portion.                                                                                                              
                                                                                                                                
CHAIR ROKEBERG said  his intention was to raise the  cap [of what                                                               
the offender would pay] from $1,000 to $2,000.                                                                                  
                                                                                                                                
MS.  BROWER  clarified  that  that  raise was  for  the  cost  of                                                               
incarceration, not  for the costs of  treatment; currently, there                                                               
is no cap on the amount an offender pays for treatment.                                                                         
                                                                                                                                
CHAIR  ROKEBERG  surmised, then,  that  if  there  were to  be  a                                                               
private health insurance  plan in place, [the  DOC] could collect                                                               
[for treatment].                                                                                                                
                                                                                                                                
MS. BROWER expressed uncertainty  about that assumption, and said                                                               
she would have to research it.                                                                                                  
                                                                                                                                
Number 1452                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  mentioned that the House  Finance Subcommittee on                                                               
Corrections tries to look at  [the DOC's] ability to recoup costs                                                               
via the  offender's (or spouse's)  insurance coverage.   He noted                                                               
that  Ms. Brower  was making  a distinction  between the  cost of                                                               
incarceration  and  the  cost  of  treatment,  and  he  asked  if                                                               
offenders were  subject to restitution  to the state if  they had                                                               
income.                                                                                                                         
                                                                                                                                
MS.  BROWER said  not  to her  knowledge.   If  offenders are  on                                                               
supervision in  the community as  probationers or  parolees, then                                                               
they have to pay for their  treatment just as anybody else would.                                                               
On  the  topic  of  the   PFDs,  she  explained  that  for  every                                                               
eligibility  year in  which  a felon  or  third-time offender  is                                                               
incarcerated, he/she is not eligible for  his/her PFD - all of it                                                               
is confiscated and  goes into the "pool."   She further explained                                                               
that  the criteria  for receiving  money from  the pool  are very                                                               
specific.  The DOC is already  in the pool to receive payment for                                                               
sex-offender treatment  and for  "gate money"; the  Department of                                                               
Public Safety (DPS), the Council  on Domestic Violence and Sexual                                                               
Assault  (CDVSA), and  "Crime Victims  Compensation" are  also in                                                               
the pool.   She added that  she was not familiar  with the pool's                                                               
priority list or distribution process.                                                                                          
                                                                                                                                
CHAIR  ROKEBERG  suggested  that that  information  is  important                                                               
because   of   the   relationship   between   how   the   [pool's                                                               
distribution] works  and what [the DOC]  can try to collect.   He                                                               
said  it  seemed  to  him  that  if there  is  a  $1,000  cap  on                                                               
[repaying] the cost of incarceration,  and if there were no other                                                               
claims  against the  offender's PFD,  then only  $1,000 could  be                                                               
taken from that PFD.  He asked if that was correct.                                                                             
                                                                                                                                
Number 1262                                                                                                                     
                                                                                                                                
MS. BROWER said that was her  assumption.  She noted that Senator                                                               
Halford has legislation - SB 105  - that would change the pool to                                                               
include PFDs  from first-time misdemeanants  with a  prior felony                                                               
conviction,  and from  misdemeanants with  two prior  misdemeanor                                                               
convictions;  that  money would  go  to  a "victim's  ombudsman's                                                               
office."                                                                                                                        
                                                                                                                                
CHAIR ROKEBERG observed  that the DUI Prevention  Task Force made                                                               
the  recommendation that  PFDs be  confiscated.   He said  he had                                                               
been assuming,  perhaps incorrectly, that  by raising the  cap of                                                               
incarceration  reimbursement  to  $2,000, HB  4  was  essentially                                                               
doing the same thing.  He  wondered if HB 4 needed other language                                                               
in order to  ensure that [the DOC] had the  greater claim [on the                                                               
PFD pool].                                                                                                                      
                                                                                                                                
REPRESENTATIVE MEYER  asked who  pays for medical  costs incurred                                                               
by an inmate.                                                                                                                   
                                                                                                                                
MS. BROWER  answered that  the state pays  those costs,  with the                                                               
exception of  a co-payment  of approximately  $2 that  the inmate                                                               
pays for every visit to the nurse.                                                                                              
                                                                                                                                
REPRESENTATIVE MEYER  then asked how inmates  make those payments                                                               
if their PFDs are confiscated.                                                                                                  
                                                                                                                                
MS. BROWER explained  that inmates earn money  (35 cents/hour) by                                                               
working within the correctional facility,  and that they can also                                                               
request money from family members.                                                                                              
                                                                                                                                
REPRESENTATIVE KOOKESH  asked how the  state forces an  inmate to                                                               
fill out and sign a PFD application.                                                                                            
                                                                                                                                
MS. BROWER responded that the  data processing section at the DOC                                                               
goes through a  complicated process to determine  an inmate's PFD                                                               
eligibility.   The DOC then  produces a list which,  when matched                                                               
up with information on file  at the Department of Revenue, allows                                                               
for  those PFDs  to  be  placed in  the  pool.   Thus  individual                                                               
applications do not need to be filled out by inmates.                                                                           
                                                                                                                                
CHAIR ROKEBERG  asked Ms.  Brower to  work with  Ms. Seitz  on an                                                               
amendment which would  ensure that [the DOC] got  "first call" on                                                               
an offender's PFD, perhaps even at  the second offense.  He added                                                               
that HB  4 would  raise the  fine imposed on  all offenders.   He                                                               
asked Mr. Wooliver  if the ACS could attach an  offender's PFD in                                                               
order to  pay the  fine if  that person  was otherwise  unable to                                                               
pay.                                                                                                                            
                                                                                                                                
MR. WOOLIVER said yes.  He went  on to explain that when a person                                                               
is  incarcerated and  that incarceration  prohibits receipt  of a                                                               
PFD, his/her PFD goes into the  pool; once a person begins to get                                                               
his/her  PFD again  after release  from jail,  there are,  to his                                                               
belief,  eight different  [levels  of priority]  for attaching  a                                                               
person's  PFD.   He listed  child support,  student loan,  court-                                                               
ordered restitution, and  fines owed to the state  as examples of                                                               
the different levels.                                                                                                           
                                                                                                                                
Number 0911                                                                                                                     
                                                                                                                                
MS. BROWER  noted that once  a person is no  longer incarcerated,                                                               
he/she  may choose  not  to  apply for  a  PFD during  subsequent                                                               
eligibility  years; thus  there would  not be  anything available                                                               
for the state to attach.                                                                                                        
                                                                                                                                
MR. WOOLIVER  added that in such  cases, the court can  mandate a                                                               
person to apply for his/her PFD.                                                                                                
                                                                                                                                
CHAIR  ROKEBERG requested  that Ms.  Brower assist  his staff  in                                                               
formulating ideas for increased revenue  sources in order to help                                                               
pay for the provisions of HB 4.                                                                                                 
                                                                                                                                
MS. BROWER said she would be happy  to work on those issues.  She                                                               
added the  following philosophical comment:   The DOC  feels that                                                               
treatment  is really  the  key  to solving  the  problem.   Other                                                               
states -  California, for  example -  have shown  that increasing                                                               
penalties and incarceration isn't  always the best response; they                                                               
can't  build themselves  enough  prisons to  handle the  problems                                                               
created by such  increases, and Ms. Brower said she  did not want                                                               
Alaska to  go the  same route.   She added that  [the DOC]  has a                                                               
strong   commitment   to   treatment;   and   when   someone   is                                                               
incarcerated,  she viewed  it  as  a fine  time  to provide  that                                                               
treatment.  She said she thought a balance was important.                                                                       
                                                                                                                                
CHAIR ROKEBERG  inquired if Ms.  Brower's testimony was  that, if                                                               
some  of the  DOC's costs  had to  be eliminated  because of  the                                                               
fiscal note,  she would  prefer to see  the treatment  money stay                                                               
and the time served go down.                                                                                                    
                                                                                                                                
MS. BROWER answered that she  wanted the treatment money to stay,                                                               
but, again, achieving a balance  was really important.  She noted                                                               
that in  order for an  offender to  receive an adequate  level of                                                               
treatment, he/she had  to be incarcerated long  enough to receive                                                               
it.  She added that she thought treatment was essential.                                                                        
                                                                                                                                
CHAIR ROKEBERG said that the  committee would look further at the                                                               
topic of  treatment as it  relates to incarceration time  for the                                                               
different classes of offenders.                                                                                                 
                                                                                                                                
Number 0710                                                                                                                     
                                                                                                                                
REPRESENTATIVE  MEYER   said  he  has  concerns   about  domestic                                                               
violence and sexual  assault, and he noted that HB  4 is focusing                                                               
on DWI.   He postulated  that soon  people will simply  resort to                                                               
staying  at  home  and  drinking,  and  that  will  increase  the                                                               
problems of  domestic violence and sexual  assault without taking                                                               
care  of  the  underlying  problem  of  alcoholism.    He  added,                                                               
therefore, that he  is in favor of keeping  the treatment funding                                                               
in HB 4.                                                                                                                        
                                                                                                                                
CHAIR ROKEBERG  commented that a  major factor  preventing people                                                               
from getting the  treatment they needed was  an unavailability of                                                               
affordable "beds."                                                                                                              
                                                                                                                                
MS.  BROWER  offered  the  following   snapshot  of  current  DWI                                                               
statistics:  504 people within  Alaska's jurisdiction are serving                                                               
time for DWI - 200 for  felony DWIs and 304 for misdemeanor DWIs.                                                               
She added  that many  of those [offenders]  are serving  time for                                                               
other  offenses concurrently.    And with  regard  to felony  DWI                                                               
offenders under  supervision, she  said that  as of  August 2000,                                                               
there were 364, although she  acknowledged that that figure might                                                               
have increased  since then.   She pointed  out that in  the DOC's                                                               
fiscal note she  had placed probation supervision  in the portion                                                               
relating  to the  .08  [BAC], because  the  felony offenders  are                                                               
already under  supervision for increased sanctions.   In response                                                               
to questions from  Chair Rokeberg, Ms. Brower  explained that the                                                               
DOC had just assumed a 10 percent increase across the board.                                                                    
                                                                                                                                
CHAIR ROKEBERG noted that the  [.16 BAC] aggravator provision had                                                               
been removed  from CSHB  4(TRA) because of  the enormous  cost in                                                               
terms of incarceration.  He  asked Mr. Guaneli to explain current                                                               
law with regard  to what would be an aggravator  in a typical DWI                                                               
case.                                                                                                                           
                                                                                                                                
Number 0271                                                                                                                     
                                                                                                                                
DEAN  J.   GUANELI,  Chief  Assistant  Attorney   General,  Legal                                                               
Services  Section-Juneau, Criminal  Division,  Department of  Law                                                               
(DOL),  said  that  for  felonies,  there  is  currently  a  long                                                               
statutory  list  of  aggravating  factors that  the  courts  must                                                               
consider  in   cases  under  presumptive  sentencing.     Typical                                                               
aggravators include things  like a weapon being used  to commit a                                                               
crime,  cases  involving  a particularly  vulnerable  victim,  or                                                               
cases wherein  a large amount of  money or drugs is  involved, to                                                               
name a few.   He added, however, that there  was nothing specific                                                               
that   relates  to   drunk   driving,  such   as   a  high   BAC;                                                               
notwithstanding this,  judges tend, as  a matter of  practice, to                                                               
add  extra incarceration  time to  sentences  involving high  BAC                                                               
levels.                                                                                                                         
                                                                                                                                
CHAIR  ROKEBERG  said he  had  concern  that  if there  were  any                                                               
aggravators placed in  HB 4, it would translate  into more prison                                                               
time and,  consequently, greater cost.   He asked  whether judges                                                               
would  find the  ability to  factor  in increased  BAC levels  at                                                               
sentencing to be a valuable tool.                                                                                               
                                                                                                                                
MR.  GUANELI said  he thought  that a  high BAC  aggravator is  a                                                               
valuable  tool  to  consider.     He  went  on  to  explain  that                                                               
statistics show  the higher a BAC  a person has, the  more likely                                                               
that person is  to get into an  accident, often a fatal  one.  He                                                               
said it was  interesting to note that in Alaska,  the average BAC                                                               
reading for DWI/DUI  offenses is approximately .18;  thus, in the                                                               
original version  of HB 4 that  had an aggravator for  BACs above                                                               
.15,  that  aggravator would  have  applied  in approximately  60                                                               
percent of DWI/DUI  cases.  He also said that  those in the field                                                               
[of  law enforcement]  will say  that for  cases of  felony drunk                                                               
driving,  persons who  have had  three offenses  in a  relatively                                                               
short period  of time  tend to  be hardcore  drinkers who  have a                                                               
higher  BAC level  in their  systems all  the time.   In  many of                                                               
those felony drunk-driving cases, he added,  a BAC of .20 is very                                                               
common.   He went  on to  say again that  he thought  judges were                                                               
already  taking high  BAC levels  into  consideration, just  that                                                               
they were not mandated to do so.                                                                                                
                                                                                                                                
TAPE 01-34, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
MR.  GUANELI  noted  that  he  was  not  certain  what  he  could                                                               
recommend in terms of putting  a specific BAC aggravator level in                                                               
statute,  or  in terms  of  giving  judges specific  instructions                                                               
regarding sentencing.                                                                                                           
                                                                                                                                
CHAIR ROKEBERG  asked, by  putting a  specific BAC  aggravator in                                                               
statute, whether the judge would still have discretion.                                                                         
                                                                                                                                
MR. GUANELI responded that having  an aggravator in statute would                                                               
allow the judge  to take it into consideration, but  the judge is                                                               
not required to do so.                                                                                                          
                                                                                                                                
CHAIR ROKEBERG then asked if by  having an aggravator of .20 BAC,                                                               
the fiscal  note could remain  lower.  He  agreed that as  a true                                                               
aggravator, [.16 BAC] was probably too low.                                                                                     
                                                                                                                                
MR. GUANELI said he did not  have a response regarding the fiscal                                                               
impact of a  BAC aggravator because it is  probably already being                                                               
taken into consideration by judges to some extent now.                                                                          
                                                                                                                                
CHAIR ROKEBERG  opined that  having a  BAC aggravator  in statute                                                               
would  simply translate  into more  jail time;  hence the  debate                                                               
would  become about  how  effective  more jail  time  was on  the                                                               
problem  [of  DWI/DUI].    He  asked  if  there  were  any  other                                                               
aggravating circumstances,  aside from high BACs,  that should be                                                               
taken into account.                                                                                                             
                                                                                                                                
MR. GUANELI  observed that although  there are a number  of other                                                               
possible  aggravators, such  as  whether injuries  occurred as  a                                                               
result  of an  accident in  a DWI/DUI  case, judges  already take                                                               
those  aggravators  into account.    On  the topic  of  increased                                                               
penalties and  fines, he said  that in general, Alaska  has tough                                                               
[DWI/DUI] laws  now, and they  would become  considerably tougher                                                               
under HB  4.  He noted,  for example, that the  current mandatory                                                               
minimum fine for  felony drunk driving is $5,000 -  which is much                                                               
higher than in any other state,  according to an Internet list he                                                               
had come across -  and would become $10,000 under HB  4.  He said                                                               
that while raising such fines  and penalties is not necessarily a                                                               
bad  thing to  do, the  administration's position  is that  there                                                               
must be a clear focus on  treatment for offenders.  He added that                                                               
some of that  treatment must occur in prison and  some of it must                                                               
occur outside  of prison; ordinarily,  offenders are  required to                                                               
pay a  good portion  of the  cost of treatment.   Hence  there is                                                               
some concern  that having high financial  penalties, particularly                                                               
with  repeat offenders,  will make  it extraordinarily  difficult                                                               
for offenders to get the treatment they need.                                                                                   
                                                                                                                                
REPRESENTATIVE   COGHILL  asked   what  the   generally  accepted                                                               
[timeframe] for successful treatment was.                                                                                       
                                                                                                                                
MR. GUANELI  offered to respond  to that question in  more detail                                                               
at a  later meeting, but  for now he said  that the DOC  tries to                                                               
provide what treatment it can within  the confines of how long an                                                               
offender is in custody.  He  noted that chronic offenders tend to                                                               
need a  long period  of follow-up  care, and  sometimes inpatient                                                               
care,  after  being released  from  jail.    He also  noted  that                                                               
treatment  providers speak  of a  28-day  structured program  for                                                               
certain levels of offender, and  there are also other programs of                                                               
varying  length,  dependent  upon  the extent  of  an  offender's                                                               
problem.  He said his sense  was that an offender needed a fairly                                                               
long period of  treatment in some sort of  inpatient program, but                                                               
he would prefer  to defer to the experts the  question of exactly                                                               
how long that treatment period should be.                                                                                       
                                                                                                                                
Number 0615                                                                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL  commented  that  he  believed  that  the                                                               
$10,000 fine  could be found  onerous, and might  actually "break                                                               
the  issue of  treatment,"  thereby removing  an offender's  hope                                                               
that he/she could get out of  the problems created by the DWI/DUI                                                               
offense.   He offered that even  $5,000 was a pretty  heavy cloud                                                               
to hang over a treatable offender.                                                                                              
                                                                                                                                
CHAIR ROKEBERG  asked if it  would be  possible for the  judge to                                                               
order that the fines go towards  treatment, or if the judge could                                                               
suspend certain fines upon reimbursement of treatment costs.                                                                    
                                                                                                                                
MR. GUANELI  responded that  he would  have to  investigate those                                                               
issues further; however,  he said he believed  that the mandatory                                                               
minimum  fine  could  not  be  suspended  and  still  begged  the                                                               
question of  whether an offender  had the wherewithal to  pay for                                                               
treatment.                                                                                                                      
                                                                                                                                
CHAIR ROKEBERG asked if having  the flexibility to either suspend                                                               
the fine or order it paid  towards treatment would ensure that an                                                               
offender could  pay for treatment,  even if  it was only  a small                                                               
amount of  treatment.   He acknowledged,  however, that  fines do                                                               
serve a  purpose of  judicial punishment,  which is  separate and                                                               
distinct  from  the treatment  element,  and  he noted  that  the                                                               
Criminal  Justice Assessment  Commission (CJAC)  recommended that                                                               
all fines  for state  offenses be  doubled.   He also  noted that                                                               
there was a  practical problem created by  forcing an individual,                                                               
through statute, to  reimburse the state for  treatment when that                                                               
individual has a limited amount of funds.                                                                                       
                                                                                                                                
MR.  GUANELI  offered that  the  CJAC  recommendation might  only                                                               
apply to lower-level  offenses; he was not certain  that the CJAC                                                               
had   this   specific   offense   in  mind   when   making   that                                                               
recommendation.    He  also  pointed  out that  once  a  fine  is                                                               
imposed, it  becomes the state's money  and is supposed to  go in                                                               
to the GF;  it is not supposed to be  spent without going through                                                               
the appropriation process.   Therefore, even if a  judge did have                                                               
the discretion to  suspend fines on the  condition that offenders                                                               
meet other  criteria, fines  could not  just simply  be collected                                                               
and turned  over to  a treatment  provider without  an additional                                                               
legislative  process.   He stipulated  he would  have to  see any                                                               
proposed  language before  being able  to say  how the  mechanism                                                               
worked.                                                                                                                         
                                                                                                                                
Number 0865                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  said  that  presumably,   now,  when  fines  are                                                               
collected  and put  in the  GF, the  GF reimburses  the treatment                                                               
provider;  but that  doesn't resolve  the dilemma  of "how  do we                                                               
squeeze blood out of a turnip, if it is only a small turnip."                                                                   
                                                                                                                                
REPRESENTATIVE COGHILL  said he agreed,  and he asked  whether it                                                               
is  true that  second- and  third-time DWI/DUI  offenders usually                                                               
have other aggravators or offenses.                                                                                             
                                                                                                                                
MR. GUANELI  confirmed that in many  cases it is true.   He noted                                                               
that the  most common other  offense is driving with  a suspended                                                               
license;  in  cases in  which  there  is  an accident,  there  is                                                               
usually an  assault charge as  well.   In response to  a question                                                               
from  Chair Rokeberg,  Mr.  Guaneli said  he  would be  compiling                                                               
information  regarding the  percentage  of fines  that are  being                                                               
collected.                                                                                                                      
                                                                                                                                
CHAIR ROKEBERG  said he would  appreciate that  information since                                                               
it was  part of the  fiscal note on  the positive side,  which he                                                               
now estimated  to be about $700,000.   He also asked  Mr. Guaneli                                                               
to further investigate what portion  of an offender's funds might                                                               
be available  to go directly  toward the treatment element  of HB
4.                                                                                                                              
                                                                                                                                
MR. GUANELI said he would  look into that issue, although program                                                               
receipts were  not his area  [of expertise].   He added  that the                                                               
countervailing   policy  question   is  how   much  control   the                                                               
legislature wants to continue to have over all of the funding.                                                                  
                                                                                                                                
REPRESENTATIVE  COGHILL asked  if,  in having  a mandatory  fine,                                                               
discretion at the bench was unallowable.                                                                                        
                                                                                                                                
MR. GUANELI replied that that was correct.                                                                                      
                                                                                                                                
REPRESENTATIVE  COGHILL  then  asked  if  the  mandate  could  be                                                               
changed by inserting language allowing latitude to the judge.                                                                   
                                                                                                                                
Number 1161                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG agreed  that that  was  the sort  of solution  he                                                               
would like to see in order  to divert the funds toward treatment.                                                               
He said  that if it  were discretionary, then  HB 4 could  have a                                                               
range of  fines with the $10,000  fine at the top;  he added that                                                               
he was not "wedded" to a $10,000 cap.                                                                                           
                                                                                                                                
MR. WOOLIVER simply  added that a mandatory minimum  fine goes to                                                               
the GF, and  absent some type of  specific legislative authority,                                                               
there  was no  discretion  to  divert that  money  to some  other                                                               
program.   With  regard  to  how the  ASAP  works,  he said  that                                                               
currently judges can  order an offender into  treatment and order                                                               
that  the  offender   be  responsible  for  the   costs  of  that                                                               
treatment.                                                                                                                      
                                                                                                                                
CHAIR ROKEBERG  said it seemed to  him as though [HB  4] could be                                                               
drafted to mirror  that practice with the  added stipulation that                                                               
payment for treatment had priority.                                                                                             
                                                                                                                                
MR. GUANELI clarified  that the way it is done  currently in, for                                                               
example, a  felony drunk  driving case,  the judge  sentences the                                                               
offender to  one year in  jail with  six months suspended  on the                                                               
condition that after  the offender gets out of  jail, he/she gets                                                               
evaluated by the ASAP and  follows its recommendations, including                                                               
paying for  any treatment  programs.   If those  requirements are                                                               
not complied  with -  including payment of  treatment -  then the                                                               
offender  is hauled  back  to  jail to  serve  the remaining  six                                                               
months that were  suspended.  He said that in  addition to paying                                                               
for treatment, the  offender pays a fine of $5,000;  the order in                                                               
which these are paid is left up  to the judge.  He added that his                                                               
guess was  that judges  probably allow  treatment portions  to be                                                               
paid first, followed  by payment of any fines owed  over a period                                                               
of time.  Then,  if the fine is not paid in  a timely fashion, it                                                               
goes through  collections, and attaching  the PFD is  usually one                                                               
of the first things [the DOL] does.                                                                                             
                                                                                                                                
MR. GUANELI then asked if the  proposal is to have $10,000 be the                                                               
fine, with $5,000 suspended on  the condition that other criteria                                                               
are met by the  offender, or if the proposal is  to keep the fine                                                               
at $5,000  and suspend part of  that in order to  ensure that the                                                               
offender  has enough  money to  pay for  treatment.   He said  he                                                               
thought there  were various ways  to go  about it, and  they were                                                               
all questions of  policy, though he was willing to  look into any                                                               
proposals in terms of procedure.                                                                                                
                                                                                                                                
Number 1405                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG said he would  appreciate Mr. Guaneli's input.  He                                                               
reiterated that he was not  wedded to the $10,000 [cap], although                                                               
he was  not afraid of it,  either, in terms of  that amount being                                                               
an  appropriate fine  for somebody  who  has the  wealth and  can                                                               
afford it.  He added that  he was sure that judges consider those                                                               
issues before  meting out  fines.   He added  that he  simply had                                                               
concerns   regarding   treatment   reimbursement   for   mandated                                                               
treatment.   He also mentioned  that, with regard to  the example                                                               
given by Mr. Guaneli,  there is a provision in HB  4 that has the                                                               
DOC  providing   treatment  during   the  first  six   months  of                                                               
incarceration.    He  noted  that   the  survivability  of  DOC's                                                               
mandated treatment program was another  issue the legislature had                                                               
to face.                                                                                                                        
                                                                                                                                
MR. GUANELI  agreed that that  was another issue, given  that the                                                               
average  sentence  for  the   200-plus  felony-DWI  offenders  is                                                               
several months; that is a lot of  people for the DOC to have in a                                                               
specifically  designed alcohol  [treatment] program.   Therefore,                                                               
from the standpoint  of the DOC, it becomes an  issue of how many                                                               
beds are available.                                                                                                             
                                                                                                                                
CHAIR  ROKEBERG commented  that  it was  important  that all  the                                                               
provisions  of HB  4  fit  together, and  he  announced that  the                                                               
discussions would continue.  [HB 4 was held over.]                                                                              

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