Legislature(1995 - 1996)

03/22/1995 09:20 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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  CS FOR HOUSE BILL NO. 21(FIN)                                                
                                                                               
       An Act relating to revocation of a driver's license for                 
       illegal possession or use of  a controlled substance or                 
       illegal  possession  or  consumption  of  alcohol by  a                 
       person  at  least  13 but  not  yet  21  years of  age;                 
       relating  to  revocation  of  a  driver's  license  for                 
       illegal possession or use  of a firearm by a  person at                 
       least  13  but not  yet 18  years  of age;  relating to                 
       treatment programs required for issuance or  reissuance                 
       of a driver's  license; and providing for  an effective                 
       date.                                                                   
                                                                               
  REPRESENTATIVE  BRIAN PORTER,  sponsor  of the  legislation,                 
  came before  committee.   He voiced  his understanding  that                 
  concern  previously raised  by committee members  relates to                 
  language at page 1,  line 9, and whether to  allow "probable                 
  cause" arrests rather  than arrests based on  probable cause                 
  and personal  observations.  Felony arrest may be made based                 
  on probable  cause.   No personal  observation is  required.                 
  For misdemeanors, the only way arrest  without a warrant can                 
  be made  is by  personal observation  of the  offense by  an                 
  officer.   There are  exceptions such  as domestic  violence                 
  situations where the  officer arrives after the  assault but                 
  can see that one occurred and  has probable cause to believe                 
  that the domestic partner was the perpetrator.   The officer                 
  may  then make a probable  cause arrest.   Further, in a DWI                 
  accident  case, within  a certain  length of time  after the                 
  accident, an officer may make a probable cause arrest.                       
                                                                               
  The proposed bill seeks an additional exception in instances                 
  where it  is  necessary to  protect  minors from  drugs  and                 
  alcohol.  Without ability to arrest based on probable cause,                 
  an officer must actually see the minor drinking the alcohol.                 
  Inability of the officer to arrest  when a minor is found in                 
  an intoxicated state places the minor in jeopardy.                           
                                                                               
  Similar legislation was passed by  the Senate last year, and                 
  failed to pass the House.                                                    
                                                                               
  Senator  Rieger asked what would happen in a situation where                 
  a juvenile  is identified by  a third person as  "being at a                 
  party  where alcohol  is  present."   Representative  Porter                 
  advised that that alone would not constitute probable cause.                 
  The officer must actually confront the  minor and be able to                 
  determine,  through  observation,  that the  minor  has been                 
  drinking.  Citing  AS 14.15.050,  Senator Rieger voiced  his                 
  understanding that mere possession would trigger the offense                 
  within  the proposed bill.  He  then inquired concerning the                 
  threshold  for  probable   cause  that  a  juvenile   is  in                 
                                                                               
                                                                               
  possession of  alcohol.  Representative Porter described the                 
  general   probable  cause  threshold   as  "that  amount  of                 
  information  that would  make a  reasonable, prudent  person                 
  believe that that  in fact happened."   The whole intent  of                 
  the bill is "not to be able to, without observation, make an                 
  arrest   for  possession  if  there  isn't  an  intoxication                 
  element."  The intent is to cover situations such as that in                 
  Ketchikan  where  an intoxicated  young  man was  taken into                 
  custody,  but  the case  was  subsequently lost  because the                 
  judge  determined  that  the   officer  had  not  personally                 
  observed the drinking that caused the intoxication.                          
                                                                               
  Senator Rieger asked  if the sponsor  would be open to  bill                 
  language  that  reflects  that  intent rather  than  current                 
  wording.  Representative  Porter responded that in  areas of                 
  concern raised  by  Senator Rieger,  probable  cause  "would                 
  probably  not be  established."   Senator Rieger  referenced                 
  existing law and noted that it allows for license revocation                 
  for consumption or  possession of alcohol.   While testimony                 
  from the sponsor indicates that the intent of the bill is to                 
  apply to situations where a minor has been drinking, but the                 
  officer  has  not observed  the  drinking, that  is  not how                 
  proposed language reads.   He voiced concern  that ambiguity                 
  in enforcement could result, and  the bill could be unfairly                 
  used against a young person toward whom an officer has taken                 
  a dislike.  Senator Rieger remarked that the  legislation is                 
  "riddled  with  ambiguities about  whether  the due  process                 
  would be followed or not."  Representative Porter referenced                 
  a proposed  amendment addressing "similar elements" which he                 
  advised  he  did  not  oppose.    He further  referenced  an                 
  amendment  relating  to  language   adding  "adjudicated  or                 
  convicted" which he  advised he also  would not oppose.   He                 
  said  he would  have no  problem "taking  possession out  of                 
  here."    The aim  of  possession was  internal  rather than                 
  external.   There is no  hidden intent  in the  legislation.                 
  Senator Rieger  said he  was not  questioning the  sponsor's                 
  intent but the  actual language of  the bill and whether  or                 
  not it reflects the proposed intent.                                         
                                                                               
  Co-chairman Halford inquired concerning what would happen if                 
  the order  of the sentence were reversed  to read that "if a                 
  police officer, based on personal  observation, has probable                 
  cause."  MARGOT KNUTH, Assistant  Attorney General, Dept. of                 
  Law, came before  committee to speak  to the question.   She                 
  advised  of concern  that  "based  on personal  observation"                 
  means  something different to Alaska  courts than it does to                 
  members of the  committee.  Courts construe  that wording to                 
  mean that the  officer observed the offense  being committed                 
  rather  than  observing  that  the  minor  was  intoxicated.                 
  Addition of personal observation  would confuse the  statute                 
  and undermine the intent of the legislation.  Representative                 
  Porter suggested addition of  "based on personal observation                 
  of the  minor."   He noted  that personal  observation is  a                 
  "term of  art" used  in framing probable  cause arrest.  Co-                 
                                                                               
                                                                               
  chairman Halford advised that he was satisfied with the bill                 
  as  it  stands.    He  then  asked  Ms.  Knuth  if  she  had                 
  alternative  language.    She  responded  negatively.    She                 
  reiterated that the "probable cause  to believe" standard is                 
  used for felony cases and in citing for misdemeanors.  It is                 
  the proper standard to use.                                                  
                                                                               
  Senator  Zharoff   raised  a  question   regarding  language                 
  relating to  "municipal  ordinances."   Ms. Knuth  explained                 
  that municipal ordinance may criminalize the same conduct as                 
  state statutes.   Situations were  identified wherein people                 
  prosecuted  under state  law were  treated differently  than                 
  those  prosecuted  under municipal  ordinance  for the  same                 
  offense.  The  consequence was  that individuals were  being                 
  cited  and  prosecuted under  state  law  only in  order  to                 
  benefit from "this extra procedure here."                                    
                                                                               
  Senator Donley suggested that language  read:  "has probable                 
  cause  based   on  some   personal  observation   and  other                 
  evidence."  Representative Porter advised that the foregoing                 
  presumes  "some  other  element" would  need  to  be proven,                 
  besides the observation  of the officer  that the minor  was                 
  intoxicated.                                                                 
                                                                               
  Discussion followed  among members and  Ms. Knuth  regarding                 
  application of the phrase "probable cause to believe."                       
                                                                               
  Further discussion followed regarding legislation that would                 
  classify  the  offense   as  a   violation  rather  than   a                 
  misdemeanor.  Representative Porter voiced support  for that                 
  approach.  The intent  is to be able to  take an intoxicated                 
  minor  into  custody so  that  he  or she  does  not further                 
  endanger himself or herself.                                                 
                                                                               
  Senator Zharoff  asked if the  proposed bill  would lead  to                 
  incarceration.   Ms. Knuth responded negatively, saying that                 
  "It's  only  a  suspension  of  driving privileges  for  the                 
  offense."  Representative Porter  advised that the foregoing                 
  presently exists but does not apply to municipal ordinances.                 
  It is equally reasonable to have this sanction available  to                 
  municipal ordinance violations.                                              
                                                                               
  Co-chairman  Halford  referenced a  conceptual  amendment by                 
  Senator  Phillips   to  add   "with  substantially   similar                 
  elements"  following  the  word "ordinance"  throughout  the                 
  bill.   He  then  called for  objections.    Senator  Rieger                 
  objected.  A  discussion of backup information  dealing with                 
  the  number  of  murder  and  DWI  fatalities  in  Anchorage                 
  followed  between  the  Senator  and Representative  Porter.                 
  Senator  Rieger  voiced support  for  addition of  the above                 
  wording  in  all sections  but Sec.  5.   He  suggested that                 
  municipalities should have the right  to their own firearms'                 
  laws within their  borders.   He questioned bill  provisions                 
  that would suspend  a minor's  driving license for  improper                 
                                                                               
                                                                               
  use  of  a firearm  rather  than taking  away the  gun.   He                 
  suggested that  the bill  provides no  symmetry between  the                 
  offense  and   remedy.    Representative  Porter   spoke  to                 
  established public  policy that  it is  not appropriate,  in                 
  some cases, for  minors to possess  firearms, and it is  not                 
  appropriate,  at  all, for  minors  to  drink.   To  further                 
  enhance that position, the legislature passed legislation to                 
  deter minors from doing things they  should not do.  Because                 
  young people value their driver's license and would not want                 
  to lose it,  license suspension was chosen as the deterrent.                 
  The proposed bill seeks to ensure that cities with municipal                 
  ordinances  of  the  same  kind,  are  allowed to  use  that                 
  sanction when prosecuting under municipal ordinance.                         
                                                                               
  Co-chairman  Halford voiced  support for  adding  the above-                 
  noted language throughout the bill.  Senator Rieger MOVED to                 
  apply the  language to  all sections  but Sec.  5.   Senator                 
  Randy  Phillips OBJECTED.  The Co-chairman called for a show                 
  of hands.   The  motion failed  on a vote  of 2  to 4.   Co-                 
  chairman Halford next called for a show of hands on the main                 
  motion to apply the language to  all sections of the bill.                   
  The motion CARRIED  on a vote of  4 to 2, and  the amendment                 
  was ADOPTED.                                                                 
                                                                               
  Senator Donley MOVED to add "or  adjudicated" after the word                 
  "convicted" at page 4, lines  4 and 6.  No  objection having                 
  been raised, the amendment was ADOPTED.                                      
                                                                               
  Senator Zharoff inquired  concerning the  length of time  of                 
  license  revocation.    JUANITA  HENSLEY,  Chief  of  Driver                 
  Services,  Division  of  Motor  Vehicles,  Dept.  of  Public                 
  Safety, came  before committee.  She advised of a revocation                 
  of 90 days for a first offense,   1 year for the second, and                 
  3 years for the third offense.   Discussion followed between                 
  Mrs.  Hensley and  Senator  Zharoff concerning  requirements                 
  that minors must meet  before a license is reinstated.   Ms.                 
  Knuth noted that existing law allows the department to waive                 
  requirements  for  those  who  live   in  areas  where  drug                 
  rehabilitation or alcoholism treatment is unavailable.                       
                                                                               
  Senator  Zharoff  next  asked how  long  a  revocation would                 
  remain on an individual's driving record.  Mrs. Hensley said                 
  that  no  violation  would  appear  on the  minor's  driving                 
  license because  revocation may  not result  from a  traffic                 
  offense.  Revocation will remain on internal records for ten                 
  years.                                                                       
                                                                               
  Discussion of  insurance  requirements  and  the  impact  of                 
  revocation  on  insurance  costs  followed  between  Senator                 
  Zharoff and  Mrs. Hensley.     Mrs.  Hensley explained  that                 
  insurance companies do  not have access to  the same records                 
  as does the department.  She  then advised of 5-year records                 
  for  revocations  and 3  years  for other  traffic offenses.                 
  Further  discussion  of   insurance  followed  between  Mrs.                 
                                                                               
                                                                               
  Hensley and Senator  Rieger.   Senator Rieger stressed  that                 
  the ultimate  penalty under the  proposed bill might  be not                 
  only license revocation for 30 days  but payment of $1,000 a                 
  year  in additional  insurance  costs.   Co-chairman Halford                 
  suggested  that  the   higher  payment  might  be   a  "good                 
  deterrent."                                                                  
                                                                               
  Senator  Zharoff voiced  his understanding  that,  under the                 
  proposed  bill,  a minor  would  not  have to  be  driving a                 
  vehicle to  have his  or her  license revoked.   Co-chairman                 
  Halford noted that the minors "just  have to be breaking the                 
  law."                                                                        
                                                                               
                       RECESS - 9:55 a.m.                                      
                     RECONVENE - 10:02 a.m.                                    
                                                                               
  Senator  Phillips  MOVED  that  CSHB   21  (Fin)  pass  from                 
  committee   with   individual   recommendations    and   the                 
  accompanying fiscal  notes.   Senator Rieger  OBJECTED.   He                 
  then directed  attention to  the four  qualifiers set  forth                 
  under subsection (c) at page 2  and noted that they must  be                 
  satisfied  before revocation  can occur.   He then  raised a                 
  question  concerning  whether  someone  in  violation  of  a                 
  municipal ordinance in  1992 and  charged with a  subsequent                 
  offense  in  1996  would  automatically  satisfy  the second                 
  qualifier  because  of the  prior  citation.   He referenced                 
  prior testimony that "It wouldn't be interpreted that way by                 
  the  courts."   Ms.  Knuth responded,  "It  does not  seem a                 
  reasonable interpretation, at all, that the statute could be                 
  read as  you're suggesting."   Mrs.  Hensley clarified  that                 
  Sec. 2  deals with administrative processes  associated with                 
  revocation  and  the  hearing process.    A  hearing officer                 
  looking at a new case would  have to determine that all four                 
  qualifiers are met  before a license  can be revoked.   That                 
  will be based on each individual arrest.                                     
                                                                               
  End:      SFC-95, #21, Side 1                                                
  Begin:    SFC-95, #21, Side 2                                                
                                                                               
  Co-chairman Halford called for objections  to passage of the                 
  bill.  No  objection having been  raised, CSHB 21 (Fin)  was                 
  REPORTED OUT  of committee with  zero fiscal notes  from the                 
  Dept. of Law,  Dept. of Public  Safety, Dept. of Health  and                 
  Social Services, and Dept. of Administration.                                
                                                                               

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