Legislature(2005 - 2006)CAPITOL 120
02/10/2006 01:00 PM JUDICIARY
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* first hearing in first committee of referral
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HB 190 - REQUIRED ID FOR PURCHASING ALCOHOL 2:38:05 PM CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 190, "An Act relating to the purchase of alcoholic beverages and to requiring identification to buy alcoholic beverages; requiring driver's licenses and identification cards to be marked if a person is restricted from consuming alcoholic beverages as a result of a conviction or condition of probation or parole." [Before the committee was CSHB 190(L&C).] 2:38:29 PM REPRESENTATIVE HARRY CRAWFORD, Alaska State Legislature, sponsor of HB 190, relayed that during the interim he'd had the opportunity to consider the question of what can be done to prevent the sort of situation in which he found himself last year when his wife was struck by a drunk driver. House Bill 190 is intended to stop people from getting alcohol, from getting drunk, from getting to the point where they kill and maim people. Currently, judges will order people who are convicted of felony driving under the influence (DUI) to not buy or consume alcohol or enter premises where alcohol is sold; however, those orders aren't enforced because there is not yet a way to identify such people. REPRESENTATIVE CRAWFORD said that HB 190 would require that driver's licenses or state identification (ID) cards be marked so that everyone could identify those who've been convicted of DUI. A prior version of the bill required establishment owners to be responsible for checking IDs for such marking, but that concept didn't have statewide support, and so the current version of HB 190 - CSHB 190(L&C) - makes the checking of IDs by establishment owners voluntarily. If an establishment owner does choose to check someone's ID and finds the marking that indicates the person has been ordered by the court to not buy or consume alcohol or enter premises where alcohol is sold, the establishment owner could collect a civil damages award of $1,000. He noted that he'd borrowed the civil fine concept from legislation pertaining to minor consuming. REPRESENTATIVE CRAWFORD relayed that Brown Jug, Inc. ("Brown Jug"), had expressed a willingness to incorporate the checking of IDs for court order designations into its current practices. REPRESENTATIVE ANDERSON asked Representative Crawford whether he's consulted with the Cabaret Hotel Restaurant & Retailer's Association (CHARR) regarding this bill. REPRESENTATIVE CRAWFORD indicated that he had but doesn't yet have anything in writing. His understanding is that as long as the proposal is voluntary, CHARR would have no objection to checking IDs for evidence of court orders. 2:45:31 PM REPRESENTATIVE CRAWFORD, in response to a question, explained that the first portion of Section 1 specifies that the person who has been ordered by the court to not buy or consume alcohol or enter premises where alcohol is sold may not do so; CSHB 190(L&C) does not require an establishment owner to check IDs for such court orders. REPRESENTATIVE ANDERSON expressed favor with the concept embodied in CSHB 190(L&C), and concern that IDs will soon start containing more and more information about a person. REPRESENTATIVE CRAWFORD noted that the strip on the back of driver's licenses already provides certain information [as described in AS 28.15.111(a)]. REPRESENTATIVE GRUENBERG said he supports the bill, but he is questioning whether a stigma will be placed on a person with an ID marked in the manner being proposed; a stigma, for example, that could influence a job interview. CHAIR McGUIRE said she agrees with the goals of the bill, but questions whether marking one's ID in the fashion proposed would be considered "cruel and unusual" punishment in that it would constitute continued punishment - further punishment meted out after one serves his/her time and pays his/her fines and penalties. REPRESENTATIVE CRAWFORD acknowledged that having one's ID marked in the proposed manner could be somewhat of a stigma, but opined that people should know that one is not to have alcohol or enter onto premises that serve alcohol. He offered his understanding that such a mark can be removed once the court order has been satisfied/removed. CHAIR McGUIRE noted that some states mark the license plates of those who've been convicted of DUI, and asked whether anyone has looked into the constitutional aspects of marking IDs in the manner proposed. 2:51:20 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), indicated that she's not yet researched that issue, but added that she would be surprised if there are any constitutional ramifications given that an ID would only be marked for a limited period of time. CHAIR McGUIRE asked what such a mark would look like. REPRESENTATIVE CRAWFORD said that the Division of Motor Vehicles (DMV) would resolve that issue. 2:52:12 PM DUANE BANNOCK, Director, Division of Motor Vehicles (DMV), Department of Administration (DOA), relayed that he is not familiar with any state that uses such a mark and so he cannot answer that particular question. He said that CSHB 190(L&C) still causes the DMV concern because currently there is not a direct link of communication between the DMV and the Alaska Court System, and thus there is no way for the DMV to determine who has been court ordered to not buy or consume alcohol or enter premises where alcohol is sold. And even though Section 2 of the bill states in part, "the person has been ordered to refrain from consuming alcoholic beverages as part of a sentence for conviction of a crime under AS 28.35.030 or as a condition of probation or parole", the DMV doesn't have any idea what would be expected in terms of how many "customers" it could be dealing with and what would be expected if the court simply faxes over court orders. For example, would the DMV be expected to revoke the driver's privilege until the driver came to the DMV to get another driver's license, and is there a time frame involved? So although the DMV understands Section 4 of the bill, the DMV is concerned about how it will get the information in a timely manner so as to be able to act accordingly. REPRESENTATIVE ANDERSON asked whether the establishment owner would be held accountable by the Alcoholic Beverage Control Board ("ABC Board") if he/she failed to identify someone as having been ordered by the court to not buy or consume alcohol or enter premises where alcohol is sold, what the fiscal impact will be on the DMV, and whether an individual would be held liable for providing alcohol to someone who has been ordered by the court to not buy or consume alcohol or enter premises where alcohol is sold. 2:55:42 PM REPRESENTATIVE CRAWFORD answered that the establishment owner would not be liable for failing to identify such individuals, and that the DMV would be able charge those who must get a marked ID with the cost associated issuing those IDs. MR. BANNOCK, in response to a question, said it will be difficult to determine the bill's fiscal impact on the DMV. He noted that currently, every dollar the DMV collects is "defined" by either statutory or regulatory authority, and so he is presuming that the sponsor and the committee recognize that in order for the DMV to comply with the bill, there will be a cost to the DMV. And although the intent might be for the people who have to get a marked ID to be the ones paying that cost, this will require a statutory change because currently the cost of licensure is the same for everyone and the DMV does not get to raise the rate. REPRESENTATIVE CRAWFORD, in response to Representative Anderson's third question, offered his understanding that it is already against the law for an individual to provide alcohol to someone who has been ordered by the court to not buy or consume alcohol or enter premises where alcohol is sold, though that individual is not responsible for checking someone else's ID; the bill will not change current law in that regard. CHAIR McGUIRE asked Representative Crawford whether he's had a chance to work out the details of cost and expectation with the DMV. REPRESENTATIVE CRAWFORD said he'd thought that that issue had been resolved and so he will take further steps [to ensure that it is], adding that he would be amenable to an amendment on that issue. There are people being killed and maimed everyday, he remarked, adding HB 190 differs from past attempts in that it establishes a voluntary program that will provide establishment owners with the financial incentive to check IDs for court orders; something must be done to stop alcohol from getting into the hands of those that are causing the most trouble, those that continue to drink and drive. He explained that the person who struck his wife had a blood alcohol concentration (BAC) of .38, and offered his belief that one cannot get to that point of intoxication without having had a lot of practice; the person was a "multiple, repeat offender," and this is the type of person he is targeting. 3:01:02 PM REPRESENTATIVE GARA suggested that they consider a conceptual amendment that would provide the DMV with the authority to charge an enhanced fee for those that must get a marked ID. CHAIR McGUIRE indicated that another issue for the DMV to address would be how it will go about putting an appropriate program in place. She asked Mr. Bannock whether he would like the legislation to speak to that issue or whether he would prefer that the details get worked out as the DMV sees fit. MR. BANNOCK, contrary to an earlier comment, said that the DMV does have a communication link with the ACS, but pointed out that probation and parole situations are handled by the Department of Corrections (DOC), which is not linked at all to the DMV. One question that will need to be addressed is what happens to the person referred to in Section 2. For example, will he/she be required to surrender his/her unmarked ID? He pointed out that people frequently come into the DMV and sign an affidavit saying they've lost their ID; therefore, if someone has to get a marked ID but claims that he/she lost his/her unmarked ID, he/she will have both IDs and will be able to use the one that suits him/her. MR. BANNOCK said that the DMV concurs with the sponsor that something needs to be done about Alaska's drunk driver problem, but from the DMV's perspective, the cost/benefit ratio must be considered. Also, if this bill passes, who, then, won't be buying alcohol, and what will happen if a person refuses to obtain a marked ID. Although vendors will have the option of checking someone's ID for court orders, the bill doesn't speak to whether a person under a court order will be required to get a marked ID. The DMV will do as directed, he assured the committee, but the question remains of how to implement the proposed program: "exactly how are we going to get the information, what do we do with it, and is it just as much of a voluntary program for the person as it is for the vendor." REPRESENTATIVE CRAWFORD requested that the DMV provide suggestions for change. He posited that if a person refuses to get a marked ID, then he/she may be refused service in establishments that are voluntarily checking IDs for court orders. He reiterated that the intent of the bill is to cut down on the number of people who buy alcohol when they have been ordered not to, and suggested that the $1,000 [civil] fine will be a good incentive for establishment owners to assist in stopping problem drinkers. He indicated that he is amenable to working with the DMV to resolve its concerns, and opined that it won't be that hard for the DMV to implement the proposed program. REPRESENTATIVE GARA asked whether a having a DUI conviction mandates that one turn in one's license. REPRESENTATIVE CRAWFORD offered his understanding that a first- time DUI conviction wouldn't mandate such. 3:10:10 PM DOUG WOOLIVER, Administrative Attorney, Administrative Staff, Office of the Administrative Director, Alaska Court System (ACS), in response to questions, relayed that when an officer stops someone for DUI, the officer seizes the license [at the time of arrest], and the person can then get a temporary license issued by the DMV. REPRESENTATIVE WILSON surmised, then, that those arrested for DUI won't have a license; thus such a person won't be able to have two licenses as suggested by Mr. Bannock. MR. WOOLIVER concurred that that would be the case at least initially, but remarked that the situation could become more complicated if a person is given back his/her license while litigating the DUI charge. In such a situation, the person could simply claim that his/her unmarked license was lost, with the result being as Mr. Bannock predicted: the person would then have both a marked license and an unmarked license. REPRESENTATIVE GARA suggested that a solution would be to require a person to swear under oath before the court that he/she [has lost the unmarked license]; then, if a person lies under oath, he/she could be found guilty of perjury. He opined that a person should be required to have a marked license even while a case is being litigated; in other words, while a case is pending, if the person seeks to have his/her license returned, it should be a license that is marked in the manner proposed by the bill. MR. WOOLIVER acknowledged that such a requirement might fill a [loophole]. REPRESENTATIVE KOTT, referring to Section 2, offered a hypothetical example in which a judge, as part a person's probation, tells him/her that he/she can't have alcohol for a period of time, and noted that Section 1 of the bill specifies that a person who is not privileged to purchase alcohol cannot enter or remain in the premises of an establishment that sells alcohol. He asked whether this language would preclude a judge from restricting a person's ability to consume or purchase alcohol in situations where the person is employed by a licensed premises. MR. WOOLIVER offered his understanding that judges have, and would retain, the discretion to set conditions of probation. For example, a judge could say to the person that he/she can't enter a licensed premise of any kind with the exception of the one at which the person works. REPRESENTATIVE CRAWFORD concurred, adding that the bill is simply changing the enforcement aspect. MR. WOOLIVER concurred. 3:14:43 PM BRYAN TALBOTT-CLARK, President, Board of Directors, Anchorage Chapter, Mothers Against Drunk Driving (MADD), said MADD supports [HB 190], though he acknowledged that it will not solve the problems of drunk drivers, domestic violence, child abuse, sexual assault, or any of the many social ills that are fueled by alcohol. He relayed his personal experience involving a dear friend, Jessie Withrow, who was killed by a drunk driver who'd been convicted of DUI six times previously and who had been ordered by the court to not drive and to not buy or consume alcohol or enter premises where alcohol is sold. He went on to say: This is an issue about choices. In this case we're talking about a choice made by people who are under orders not to drink, whether they're going to violate that order. And this is about a way of helping them to make the right choice, making it easier for them to make the right choice. Like any choice, you can kind of imagine a bell curve, where, on one end of it, you've got people who are going to get around it anyway they can - whether it's through a fake license, getting somebody else to the buy the booze, whatever it's going to be; on the other end, you've got people who are afraid of any consequences and they're going to follow it no matter what; [and] most people are going to be in the middle, where, if they're presented with temptation, it kind of depends on how much temptation is it, what are the consequences, [and] how hard it is to get around it. And when we can set up an obstacle like this, we know that we're going to move a few people from barely making the wrong choice to barely making the right choice. And so maybe we only save a few lives, but the question I have to ask is, do we waste an opportunity to save even a few lives with just a little effort? This bill gives us that opportunity, and I urge you not to waste it. On behalf of Mothers Against Drunk Driving, and of myself, and for Jessie, I urge you to support this bill. And thank you very much for your attention. 3:18:33 PM CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on HB 190. REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment 1, which, with handwritten corrections, read: 1) While a prosecution for a DWI, other than a first DWI, is pending, and until restrictions on the right to consume alcohol remain in effect, the State shall only issue a license or State ID with markings as provided by this statute. 2) The State has the authority to charge an enhanced fee for a license or ID under this statute. CHAIR McGUIRE objected for the purpose of discussion. REPRESENTATIVE GARA posited that Conceptual Amendment 1 will address the two concerns raised, the one pertaining to having possession of an unmarked ID while a DUI case is pending, and the one pertaining to fees. He asked whether it is a common condition of probation in a DUI case that one not consume alcohol, or whether is it a common condition that one not consume alcohol while driving. MS. CARPENETI said it depends, and while either of those conditions is common, it is a more common condition that one not consume alcohol or enter establishments that serve alcohol. REPRESENTATIVE GARA surmised that they would only want the marked-license provision to apply when the condition is to not consume alcohol. 3:21:07 PM REPRESENTATIVE GRUENBERG made a motion to amend Conceptual Amendment 1 such that "shall" will become "may". There being no objection, Amendment 1 was amended. CHAIR McGUIRE removed her objection to Conceptual Amendment 1, as amended. She asked whether there were any further objections to Conceptual Amendment 1, as amended. There being none, Conceptual Amendment 1, as amended, was adopted. REPRESENTATIVE GRUENBERG noted that the bill currently doesn't contain a mechanism requiring the ACS to notify the DMV when such conditions are set by the court, and pondered whether the bill should include such a mechanism. REPRESENTATIVE CRAWFORD indicated that he would amenable to a conceptual amendment to that effect, and surmised that such a change will engender a fiscal note. MR. WOOLIVER explained that right now the ACS transmits to the DMV any judgment that affects a driver's license. REPRESENTATIVE GRUENBERG asked whether this transmittal is required by statute. MR. WOOLIVER said he is not sure. Currently the judgments are in paper form and there is a time delay, although the ACS hopes to soon have everything done electronically. MR. BANNOCK concurred that that is the case with regard to court orders, but noted that Section 2 of the bill references both court orders and conditions of probation and parole, and, again, that the DMV has zero communication with the DOC. REPRESENTATIVE GRUENBERG asked how long it takes for the DMV to receive notification [of the aforementioned judgments]. KERRY HENNINGS, Driver Licensing, Director's Office, Division of Motor Vehicles (DMV), Department of Administration (DOA), said that although such judgments are received in about 10 days, it can take up to two more weeks to manually enter the information into the DMV's system. MR. WOOLIVER, in response to a question, reiterated that the ACS hopes to eventually be able to transfer everything electronically. 3:25:25 PM REPRESENTATIVE GRUENBERG asked the sponsor whether he would be amenable to an amendment "that would be consistent with current practice" but that didn't engender a fiscal note. REPRESENTATIVE CRAWFORD indicated that he would be amenable to such a change. REPRESENTATIVE WILSON asked whether one can be ordered to not drink and yet still be allowed to drive. REPRESENTATIVE GRUENBERG offered his understanding that limited licensure provides for such circumstances. REPRESENTATIVE WILSON asked whether a limited license would specify that the person could not drink. REPRESENTATIVE GRUENBERG offered his understanding that it would. MR. WOOLIVER clarified that a lot judges impose drinking restrictions on people who've committed crimes, crimes unrelated to driving, while under the influence of alcohol. REPRESENTATIVE WILSON asked how the DMV would know to change a person's ID to reflect that although the person cannot drink, he/she can still drive. MR. WOOLIVER said that currently, under such an order for a crime unrelated to driving, a person's driver's license isn't affected and therefore it isn't changed; under HB 190, however, the ACS would have to begin sending such information to the DMV so that a person's ID could be marked. CHAIR McGUIRE offered her understanding that this would require additional processing [of information] by the DMV, and surmised that it would be up to the DMV to decide how court-ordered limitations will be designated on the licenses. 3:29:11 PM REPRESENTATIVE GARA remarked that he might have created a constitutional problem via Conceptual Amendment 1, as amended. He elaborated: "My belief is that ... if you've already had a [DUI] and you're on to your second [DUI], even when the case is pending we should be able to mark a license, but I don't know that constitutionally we can mark somebody's license if they haven't been convicted just because the case is pending." He suggested that the sponsor simply seek a way, before the bill is heard in its next committee of referral, to close the loophole wherein someone might be able to have possession of both a marked license and an unmarked license. REPRESENTATIVE GARA asked that the committee rescind it action in adopting Conceptual Amendment 1, as amended. There being no objection, the committee rescinded it action. REPRESENTATIVE GARA, in response to a question, made a motion to adopt Amendment 2, "which would say that the state has the authority to charge a higher fee for a state ID or license that contains the markings required by this bill". There being no objection, Amendment 2 was adopted. REPRESENTATIVE GRUENBERG, referring to Conceptual Amendment 1, as amended, remarked, "I'm sure that the judge could do that as a condition of bail." CHAIR McGUIRE suggested that Representative Gruenberg pursue that issue further with the sponsor. REPRESENTATIVE KOTT reiterated his concern that the language in Sections 1 and 2 will preclude a judge from placing a drinking restriction on someone who works in licensed premise because then that person wouldn't be able to go to work. MR. WOOLIVER acknowledged that his earlier response to that concern might have been in error. While it is true that a judge can tailor conditions of probation, once a license that has an alcohol restriction is issued, Section 1 of the bill will preclude a person from entering or remaining in a licensed premise regardless of what the conditions of probation say. What one can do if one has a marked license is spelled out in Section 1 of the bill, not in the conditions of probation. Therefore, Representative Kott is correct in his concern. 3:33:20 PM REPRESENTATIVE CRAWFORD offered his belief, though, that the judge still has the discretion to specify that a person may not drink but may enter his place of employment. CHAIR McGUIRE surmised that Representative Kott's concern is that the bill states that if a judge says one can't drink, then one can't enter or remain in a licensed premise. She suggested that the sponsor didn't intend for this to be the case, and therefore perhaps [Section 1 of] the bill could be changed such that one may not knowingly enter or remain in licensed premises for the purposes of consuming alcohol. REPRESENTATIVE CRAWFORD maintained his argument that the judge can specify whether a person who has been ordered to not drink may enter into a licensed premise for a purpose other than consuming alcohol, adding his belief that the license could be marked to reflect this distinction. CHAIR McGUIRE opined that it would be better to clarify that point in the bill. For example, currently under the bill, if a restaurant had an alcohol license, then someone who'd been ordered by a judge to not consume alcohol could not go to that restaurant for a meal without violating Section 1. REPRESENTATIVE CRAWFORD offered his belief that the only possible penalty for such a violation would be the aforementioned civil penalty should the establishment choose to pursue it. CHAIR McGUIRE surmised, then, that the bill would allow a restaurant to seek a $1,000 civil fine from someone who had no intention of drinking while in the restaurant. REPRESENTATIVE CRAWFORD concurred. CHAIR McGUIRE said she completely rejects that [concept]. REPRESENTATIVE CRAWFORD argued that currently, that person would be violating the law anyway because he/she is violating his/her court order if that order says that he/she may not enter or remain in a licensed premise. What a judge may order of a person is not being changed by HB 190; instead the bill merely proposes to institute an enforcement mechanism for such orders. CHAIR McGUIRE questioned whether there are really judges in this state that are issuing orders precluding someone from even entering premises that are licensed to serve alcohol. She said she agrees that there are people who should not be drinking, and that she is compelled by the arguments in favor of instituting marked IDs, but she pointed out that it is tremendous leap to then say that establishments with alcohol licenses would be off limits to those people even if they are just there to eat, or to gather for a social function, or to secure employment. MR. WOOLIVER said it is not uncommon for a court to issue a condition of probation that the person not consume alcohol or enter a premise that serves alcohol; this is typically done in more serious cases, though not all judges do so. 3:39:21 PM REPRESENTATIVE GARA suggested amending page 1, line 10, to say, "enter or remain on a premise that's licensed in this title to obtain alcohol for personal consumption". Such a change would allow a person to still eat or work in such a premise. REPRESENTATIVE KOTT indicated that such a change would address his concern. REPRESENTATIVE WILSON remarked that a judge may make a determination that a person shouldn't even enter an establishment that is licensed to serve alcohol, and pointed out that there are plenty of places for that person to eat or work. Therefore she is not that concerned that a person may not be able to enter certain establishments. CHAIR McGUIRE pointed out that in small communities, the few restaurants there are may well all be licensed to serve alcohol, and so such an order would in effect preclude someone from going out to eat. REPRESENTATIVE GARA suggested that in such a situation the license could simply be marked to indicate that a person may not be in such an establishment for the purpose of obtaining alcohol for personal consumption, though for some people the judge might even go so far as to say a person can't go into such an establishment for any purpose - the judge's discretion in that regard would not be altered via the bill. REPRESENTATIVE WILSON said she'd forgotten that some communities may not have many restaurants. REPRESENTATIVE KOTT offered the City of Kake as an example. REPRESENTATIVE CRAWFORD, in response to questions, offered his understanding that the bill provides that either a driver's license or a state identification card could be marked, and said that he didn't want someone's ID to be marked until he/she has been convicted, and then only if that conviction is for a DUI crime. REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment 3, to insert after the word, "title", on page 1, line 10, the words, "to obtain alcohol for personal consumption". There being no objection, Conceptual Amendment 3 was adopted. 3:44:45 PM REPRESENTATIVE GARA moved to report CSHB 190(L&C), as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 190(JUD) was reported from the House Judiciary Standing Committee.