Legislature(2001 - 2002)

05/05/2001 08:49 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
          CSHB 4(FIN)am - MOTOR VEHICLES & DRUNK DRIVING                                                                    
                                                                                                                                
REPRESENTATIVE NORMAN ROKEBERG,  sponsor of HB 4, gave the following                                                            
description of the measure.   CSHB 4(FIN)am is omnibus drunk driving                                                            
legislation.   It is the result of work done by the  Municipality of                                                            
Anchorage  (MOA) Assembly's  task force on  driving while under  the                                                            
influence (DUI)  of alcohol.  That  task force was formed  last year                                                            
after a  number of  tragic accidents  occurred in  Anchorage.   CSHB
4(FIN)am does the following things:                                                                                             
   · Lowers the blood alcohol content limit from .1 to .08;                                                                     
   · Mandates treatment for prisoners;                                                                                          
   · Deletes the five-year "look-back" provision while phasing in a                                                             
     ten-year "look-back" provision;                                                                                            
   · Provides for discretionary immobilization on the second                                                                    
     offense and discretionary forfeiture of vehicles on the third                                                              
     offense; and                                                                                                               
   · Requires seizure of license plates, increased fees and fines                                                               
     and cost caps on various areas of the law to enhance revenue                                                               
     and offset associated costs.                                                                                               
                                                                                                                                
REPRESENTATIVE  ROKEBERG  commented:  "Mr.  Chairman,  this  is  the                                                            
carrot and stick  and the penalty provisions of the  alcohol package                                                            
that is emanating  from the House  this year."  The intention  is to                                                            
separate  the vehicle  from the  habitual offender.   CSHB  4(FIN)am                                                            
also  emphasizes certain  elements  of treatment,  particularly  for                                                            
those who are incarcerated.  He offered to answer questions.                                                                    
                                                                                                                                
CHAIRMAN  TAYLOR asked  why the  term "intoxicated"  was changed  to                                                            
"under  the  influence  of  an  alcoholic  beverage,   inhalant,  or                                                            
controlled substance."                                                                                                          
                                                                                                                                
REPRESENTATIVE  ROKEBERG said that  change was made for a  number of                                                            
reasons.  The term, "driving  while under the influence ..." is more                                                            
applicable  throughout  the United  States and  inhalants and  other                                                            
controlled  substances were  added to the  definition.  He  believes                                                            
that  lowering the  blood alcohol  level (BAC)  from  .1 to .08  and                                                            
changing  the name of  the offense  sends a message  to the  public:                                                            
think  before  you  drink  and  get behind  the  wheel.    When  the                                                            
legislature  lowers  the  standard  and  changes  the  name  of  the                                                            
offense,  a person will have  to decide whether  he or she  is under                                                            
the influence rather than  intoxicated.  He believes it is important                                                            
to send the  message to the public  that the legislature  is serious                                                            
about stopping this offense from occurring.                                                                                     
                                                                                                                                
CHAIRMAN  TAYLOR   asked  at  what  level  Representative   Rokeberg                                                            
believes a person is under the influence.                                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG  replied: "Mr. Chairman, we have also in the                                                            
bill the impairment provisions  in state law. It is my understanding                                                            
that law enforcement  officers, when  they make the initial  arrest,                                                            
many  times  charge  under  the  impairment   statute."    Currently                                                            
"impairment" is  defined as .05; it was lowered in  the bill to .04.                                                            
He talked to  municipal prosecutors  in Anchorage who, on  occasion,                                                            
bring criminal  actions under the  impairment offense.  He  reminded                                                            
committee  members that .1  is the under the  influence level  so an                                                            
individual  could  be driving  impaired  at  a  .04 BAC  under  CSHB
4(FIN)am.                                                                                                                       
                                                                                                                                
CHAIRMAN TAYLOR  asked how the penalties  differ for impairment  and                                                            
under the influence.                                                                                                            
                                                                                                                                
MR. DEAN  GUANELI,  Assistant Attorney  General,  Department of  Law                                                            
(DOL), said there is no difference.                                                                                             
                                                                                                                                
CHAIRMAN TAYLOR  maintained that by  changing the definition  within                                                            
the  bill to  "under  the influence  ...,"  the same  penalties  are                                                            
involved but the standard is lowered to .04.                                                                                    
                                                                                                                                
REPRESENTATIVE  ROKEBERG said the current law is .05;  CSHB 4(FIN)am                                                            
would lower it to .04.   He noted Chairman Taylor is correct in that                                                            
it is the per  se level at .1 or .08.  A person is  still considered                                                            
under the influence under current law.                                                                                          
                                                                                                                                
Number 784                                                                                                                      
                                                                                                                                
SENATOR COWDERY asked for  definitions of "inhalant" and "controlled                                                            
substance."                                                                                                                     
                                                                                                                                
REPRESENTATIVE  ROKEBERG said "controlled  substance" is  defined in                                                            
statute,  which contains  a list of  certain drugs.   He then  said,                                                            
"Inhalant  also,  I  believe,  is defined  here  and  there's  other                                                            
pending legislation  on that."   He pointed  out the definition  was                                                            
included at the request of Representative Kapsner.                                                                              
                                                                                                                                
SENATOR COWDERY  referred to Section  19, regarding evaluation,  and                                                            
asked if an evaluation  can be done if a person refuses to submit to                                                            
a breath test.                                                                                                                  
                                                                                                                                
REPRESENTATIVE ROKEBERG  said one reason the bill is so long is that                                                            
the  implied   consent  and  blood   alcohol  level  statutes   were                                                            
replicated in  it.  Regarding treatment, the bill  refers to ASERP -                                                            
the Alcohol Screening  and Evaluation Referral Program,  an existing                                                            
program  where initial  screening  occurs  to evaluate  whether  the                                                            
individual  needs additional  alcohol abuse  treatment.  The  charge                                                            
for  that program  is paid  for  by the  defendant.   CSHB  4(FIN)am                                                            
contains a  provision that allows  municipalities to charge  the fee                                                            
for ASERP screening.                                                                                                            
                                                                                                                                
SENATOR  THERRIAULT asked  Representative  Rokeberg  to clarify  the                                                            
comments he made about the .05 blood alcohol level.                                                                             
                                                                                                                                
REPRESENTATIVE  ROKEBERG   explained  that  the current   impairment                                                            
statute has a .05 to .1 level.                                                                                                  
                                                                                                                                
SENATOR THERRIAULT  asked  if a person was  driving erratically  and                                                            
had a BAC of over .05, he or she could be cited while impaired.                                                                 
                                                                                                                                
REPRESENTATIVE ROKEBERG said that is correct.                                                                                   
                                                                                                                                
SENATOR THERRIAULT  asked if the fines  are the same for  impairment                                                            
and driving under the influence.                                                                                                
                                                                                                                                
REPRESENTATIVE  ROKEBERG  said  according  to  Mr. Guaneli  that  is                                                            
correct.                                                                                                                        
                                                                                                                                
SENATOR  THERRIAULT  asked why  the bill  requires a  vehicle to  be                                                            
registered under a person's first, middle and last name.                                                                        
                                                                                                                                
REPRESENTATIVE   ROKEBERG  said  the  Division  of  Motor   Vehicles                                                            
currently   has   two   separate   databases    for   licenses   and                                                            
registrations.   Those databases are not interactive  because of the                                                            
ways the names  are entered into them.   By requiring the  same name                                                            
format, the databases will be interactive.                                                                                      
                                                                                                                                
SENATOR   THERRIAULT  asked   for  clarification   of  the   vehicle                                                            
forfeiture provision.                                                                                                           
                                                                                                                                
REPRESENTATIVE  ROKEBERG explained  that under current law,  a judge                                                            
may make a discretionary  call as to whether to forfeit a vehicle on                                                            
the third  offense.  However,  the municipalities  of Anchorage  and                                                            
Fairbanks  have ordinances  that mandate  forfeiture  on the  second                                                            
offense, that  has worked as an excellent  deterrent.  The  original                                                            
version  of  the bill  had  mandatory,  rather  than discretionary,                                                             
forfeiture  on the third  offense.   It also  contained a  provision                                                            
that allowed for  either mandatory forfeiture or impoundment,  which                                                            
was primarily  aimed  at smaller  communities where  no vendors  are                                                            
available to take the vehicle  and, for example, in a situation that                                                            
warranted impounding  the vehicle  for 20 days so that it  could not                                                            
be used by  the owner.  However, some  House members were  concerned                                                            
about the mandatory  aspect so "shall"  was changed to "may"  on the                                                            
House floor,  making  both discretionary.   He felt  the bill  still                                                            
makes  progress  because  it  provides  a discretionary   forfeiture                                                            
and/or  impoundment  for the  second  offense.   His  intent was  to                                                            
implement  the mandatory  standard used in  Anchorage and  Fairbanks                                                            
statewide.                                                                                                                      
                                                                                                                                
SENATOR THERRIAULT  asked about impoundment  if a car is  registered                                                            
to several people.                                                                                                              
                                                                                                                                
REPRESENTATIVE  ROKEBERG said  that current  statute allows  for any                                                            
co-owner  or lien holder  to assert  his or her  claim.  During  the                                                            
floor  debate,  House  members  discussed  the  possibility  that  a                                                            
defendant may  have to sell the vehicle  to pay off the co-owner  or                                                            
lien holder.  He explained  that the rights of the co-owner would be                                                            
protected.                                                                                                                      
                                                                                                                                
SENATOR THERRIAULT  asked if the co-owners would have  to pay a fine                                                            
or fee to get the vehicle back.                                                                                                 
                                                                                                                                
REPRESENTATIVE  ROKEBERG said  a fee  would have to  be paid  to re-                                                            
register  the car.   He pointed out  that is  one of the  provisions                                                            
with license plate confiscation.                                                                                                
                                                                                                                                
SENATOR  THERRIAULT asked  about a  vehicle that  is towed away  and                                                            
auctioned.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  ROKEBERG said a statutory  procedure is in  existing                                                            
law and Anchorage  and Fairbanks use a very simple  civil procedure.                                                            
He informed the  committee that the Chair of the Anchorage  Assembly                                                            
has proposed an amendment  that will allow a municipal government to                                                            
have tougher provisions  for the offense of driving with a suspended                                                            
license by  allowing for the forfeiture  of vehicles.  He  asked for                                                            
the committee's support of the amendment.                                                                                       
                                                                                                                                
CHAIRMAN TAYLOR took public testimony.                                                                                          
                                                                                                                                
MS.  CINDY  CASHEN,  representing  Mothers   Against  Drunk  Driving                                                            
(MADD), gave the following testimony.                                                                                           
                                                                                                                                
     The MADD chapter strongly  endorses HB 4 and we have spent                                                                 
     a  lot  of  time  working  on  this  with  Representative                                                                  
     Rokeberg and  his staff and it is our hope that  this bill                                                                 
     will pass.  Thank you.                                                                                                     
                                                                                                                                
Number 1187                                                                                                                     
                                                                                                                                
MR. BLAIR  MCCUNE,  Deputy Director  of the  Alaska Public  Defender                                                            
Agency,  stated the  House  has done  quite a  bit of  work on  CSHB
4(FIN)am  but  he  feels  the need  to  point  out  some  continuing                                                            
problems with  the bill.  Fines will  increase dramatically,  making                                                            
Alaska one  of the harshest states  in the nation. For a  first time                                                            
offense,  the mandatory  minimum  fine will  increase  from $250  to                                                            
$1500.   The judge would  have no discretion  to lower that  amount.                                                            
The fine for  a third offense will  increase from $1,000  to $4,000.                                                            
The public defender's agency  is concerned about putting these fines                                                            
in place at such a high  level.  In addition, the license forfeiture                                                            
period for a felony  DUI is permanent.  It can be  restored after 10                                                            
years. He  believes it is  important to make  sure that drivers  are                                                            
licensed and  insured and fears that  people whose license  has been                                                            
revoked will be  tempted to drive anyway.  He feels  the bill should                                                            
provide a way  for people to get licensed  and insured in  a shorter                                                            
period of time.                                                                                                                 
                                                                                                                                
MR. MCCUNE  said CSHB 4(FIN)am increases  the "look-back"  provision                                                            
from five to  10 years for felony  DUIs, which will add quite  a bit                                                            
of time and expense for the public defender's agency.                                                                           
                                                                                                                                
MS.  MARY MARSHBURN,  Director  of the  Division  of Motor  Vehicles                                                            
(DMV), said,  like Mr. McCune, DMV  has been significantly  involved                                                            
with the  sponsor and the  legislation since  its drafting  almost a                                                            
year ago.   DMV supports lowering  the BAC to .08 but DMV  continues                                                            
to take issue  with the vehicle registration revocation  provisions.                                                            
A driver's  license  dictates whether  an individual  may drive  any                                                            
vehicle.   If a person  is permitted  to drive,  it is the  driver's                                                            
license  that determines  when and  where he  or she  may drive.   A                                                            
vehicle does not  need to be registered in a specific  person's name                                                            
for an individual  to drive it.  DMV does not believe  that removing                                                            
a person's  name from a vehicle registration  for the period  of the                                                            
driver's license revocation  will have any appreciable effect on the                                                            
DUI problem.   DMV does  believe that dealing  with re-registration                                                             
will be a chore for spouses,  other family members, or co-owners who                                                            
need the vehicle.  Likewise,  she does not believe the work required                                                            
of DMV to implement  that provision will be the most  productive and                                                            
have the  intended effect.   DMV  believes the  funds in its  fiscal                                                            
note should  be directed  to more  effective  methods of  addressing                                                            
drunk driving, such as  screening, treatment and rehabilitation, and                                                            
vehicle impoundment.   She repeated  DMV does not support  inclusion                                                            
of the vehicle registration provision in the bill.                                                                              
                                                                                                                                
SENATOR  THERRIAULT asked  that Representative  Rokeberg respond  to                                                            
Ms. Marshburn's comments.                                                                                                       
                                                                                                                                
MS. JANET  SEITZ, Chief  of Staff to Representative  Rokeberg,  said                                                            
Ms. Marshburn  was referring to Section  7: Seizure of Registration                                                             
Plates.  Currently, when  a person is stopped for a DUI offense, the                                                            
driver's  license is  seized and  replaced by  a temporary  driver's                                                            
license during which time  the person can file an appeal.  Section 7                                                            
puts a similar  scheme in place for the registration  plates so that                                                            
license  plates  are seized  and the  driver  is given  a  temporary                                                            
permit.  The bill  also says that DMV shall allow  a co-owner to re-                                                            
register  the vehicle.    She noted  it  is a  way to  separate  the                                                            
vehicle from the drunk  driver to impress upon the inebriated person                                                            
that he or she should not be driving.                                                                                           
                                                                                                                                
SENATOR THERRIAULT  said he is not sure what will  be gained for the                                                            
cost and, apparently, neither does DMV.                                                                                         
                                                                                                                                
MS. SEITZ thought the offender  would realize the seriousness of the                                                            
offense.                                                                                                                        
                                                                                                                                
Number 1509                                                                                                                     
                                                                                                                                
SENATOR  THERRIAULT  asked if  the  co-owner will  have  to pay  the                                                            
registration  fee under  Section (7)(e)  and the  offender, using  a                                                            
temporary license, can continue to drive that vehicle.                                                                          
                                                                                                                                
MS. SEITZ said the offender  and still has the right to appeal, just                                                            
as he or she does when a driver's license is confiscated.                                                                       
                                                                                                                                
SENATOR THERRIAULT  asked if a vehicle would be considered  borrowed                                                            
if a husband drove a vehicle  registered under the wife's name only.                                                            
                                                                                                                                
MS. SEITZ  said she believes  that would be  correct if his  name is                                                            
not on the title.                                                                                                               
                                                                                                                                
SENATOR THERRIAULT  asked if the seizure provision  would kick in at                                                            
all for a borrowed vehicle.                                                                                                     
                                                                                                                                
MS. MARSHBURN said it does not apply to a borrowed vehicle.                                                                     
                                                                                                                                
CHAIRMAN TAYLOR  surmised that if a person was convicted  under CSHB
4(FIN)am and could  not register a vehicle, he or  she would only be                                                            
able to drive a borrowed vehicle.                                                                                               
                                                                                                                                
MS. MARSHBURN  agreed but noted it  is the revocation of  a driver's                                                            
license that determines whether a person can drive or not.                                                                      
                                                                                                                                
CHAIRMAN  TAYLOR said the  bill contains a  provision that  makes an                                                            
exception  for a limited  class of  people, those  being victims  of                                                            
domestic violence.  He asked how that will work.                                                                                
                                                                                                                                
MS.  SEITZ  explained  that  under  current  law, a  person  is  not                                                            
supposed to knowingly authorize  or permit another person to drive a                                                            
vehicle   if  that   person   does  not   have  a   valid   license.                                                            
Representative Rokeberg  added language on page 12, lines 11 through                                                            
14,  at  the  request  of  people  who felt  the  law  needs  to  be                                                            
strengthened  so that  victims  of domestic  violence  could not  be                                                            
charged  under  current  law  as being  an  enabler  if in  fear  of                                                            
domestic violence.                                                                                                              
                                                                                                                                
SENATOR DONLEY  asked how that differs from any person  who acts out                                                            
of fear of physical violence.                                                                                                   
                                                                                                                                
Number 1800                                                                                                                     
                                                                                                                                
MS. SEITZ said  the language regarding  domestic violence  was added                                                            
at the request of Lauree Hugonin.                                                                                               
                                                                                                                                
SENATOR  DONLEY  expressed  concern  that  the  language  is  myopic                                                            
because acting under threat  is an affirmative defense to any crime.                                                            
He questioned  why the law should  specify that the person  can only                                                            
be threatened in a domestic violence situation.                                                                                 
                                                                                                                                
REPRESENTATIVE  ROKEBERG  said Senator  Donley is  correct but  that                                                            
provision will not lessen a person's common law right.                                                                          
                                                                                                                                
CHAIRMAN TAYLOR  said existing law  says one cannot loan  a car to a                                                            
person  without a valid  license.   He asked how  the vehicle  owner                                                            
would know  whether a  driver is  licensed under  existing law.   He                                                            
asked if that immunity is also part of the forfeiture provision.                                                                
                                                                                                                                
MS. SEITZ said  the title of the current statute is  Unlawful Use of                                                          
License Permitting  Unauthorized Person  to Drive.  She thought  the                                                          
"knowingly" standard would  apply so a person would not be guilty if                                                            
he or she did not know the driver did not have a valid license.                                                                 
                                                                                                                                
CHAIRMAN  TAYLOR  indicated  that  with  the  modification  in  CSHB
4(FIN)am, a person  could knowingly loan a vehicle  to an unlicensed                                                            
driver but could  "bail out" by claiming to be a victim  of domestic                                                            
violence.                                                                                                                       
                                                                                                                                
MS. SEITZ said that is correct.                                                                                                 
                                                                                                                                
CHAIRMAN  TAYLOR informed  members that an  amendment [Amendment  1]                                                            
had been proposed that  would allow municipalities to impose harsher                                                            
penalties than those provided in CSHB 4(FIN)am.                                                                                 
                                                                                                                                
REPRESENTATIVE  ROKEBERG  noted  the  Anchorage  Assembly  passed  a                                                            
resolution  a  few  weeks  ago  that  requests  the  legislature  to                                                            
[indisc.] forfeiture.                                                                                                           
                                                                                                                                
SENATOR  DONLEY maintained  that the  MOA was  successfully  dealing                                                            
with forfeiture.                                                                                                                
                                                                                                                                
REPRESENTATIVE  ROKEBERG  said  the ordinance  only  applies to  DUI                                                            
offenses; not to suspensions.                                                                                                   
                                                                                                                                
Number 2004                                                                                                                     
                                                                                                                                
MS. SEITZ explained  the MOA approved an ordinance  on April 17.  It                                                            
is considering  a resolution that requests the legislature  to amend                                                            
Title 28 to allow  municipalities to increase penalties  for driving                                                            
while a license  is suspended, revoked,  or cancelled and  allow the                                                            
impound and forfeiture  of vehicles used in the offense. She pointed                                                            
out implementation  of the  MOA's ordinance  is pending a change  to                                                            
state law.                                                                                                                      
                                                                                                                                
SENATOR  DONLEY  said he  was  very skeptical  when  penalties  were                                                            
lowered for driving without  a license.  He moved to adopt Amendment                                                            
1, which reads as follows:                                                                                                      
                                                                                                                                
                           AMENDMENT  1                                                                                     
                                                                                                                                
                                                                                                                                
     TO:  CSHB 4(FIN) am                                                                                                        
                                                                                                                                
Page 12, following line 14:                                                                                                     
     Insert a new bill section to read:                                                                                         
   "* Sec. 22.   AS 28.15.291 is amended by adding  a new subsection                                                          
to read:                                                                                                                        
          (d)  Notwithstanding other provisions in this title, a                                                                
     municipality   may  adopt  an   ordinance  providing   for  the                                                            
     impoundment  or forfeiture of  a motor vehicle involved  in the                                                            
     commission  of an offense  described under  this section  or an                                                            
     ordinance  with elements  substantially  similar to an  offense                                                            
     described under this  section.  An ordinance adopted under this                                                            
     subsection is not  required to be consistent with this title or                                                            
     regulations adopted under this title."                                                                                     
                                                                                                                                
Renumber the following bill sections accordingly.                                                                               
                                                                                                                                
SENATOR THERRIAULT  expressed concern that the phrase  "not required                                                            
to be consistent"  was used in the last line of Amendment  1 because                                                            
it could be interpreted to mean less stringent.                                                                                 
                                                                                                                                
CHAIRMAN TAYLOR noted he shares the same concern.                                                                               
                                                                                                                                
SENATOR THERRIAULT said  he favors allowing municipalities to impose                                                            
stricter  provisions, but  he does not favor  allowing more  lenient                                                            
provisions.                                                                                                                     
                                                                                                                                
SENATOR DONLEY agreed with  Senator Therriault in that the state law                                                            
should  be  the  floor and  that  local  governments  be  given  the                                                            
discretion to go farther.                                                                                                       
                                                                                                                                
CHAIRMAN TAYLOR suggested  striking the last sentence from Amendment                                                            
1.                                                                                                                              
                                                                                                                                
REPRESENTATIVE  ROKEBERG said  he agrees  with Senator Therriault's                                                             
concern.                                                                                                                        
                                                                                                                                
SENATOR DONLEY moved a  conceptual amendment to Amendment 1 to allow                                                            
local  governments to  adopt  standards that  are the  same or  more                                                            
stringent than the state standards, but not less.                                                                               
                                                                                                                                
CHAIRMAN  TAYLOR announced  that with no  objection, Amendment  1 as                                                            
amended was adopted.                                                                                                            
                                                                                                                                
SENATOR  DONLEY  asked  if the  House  examined  the  penalties  for                                                            
driving  without a  license.   He felt that  is a  problem with  the                                                            
current law  because the penalty for  driving without a license  has                                                            
been reduced.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  ROKEBERG  said  that  subject  was talked  about  in                                                            
general terms but was not  addressed in the bill as he was trying to                                                            
keep the focus of the bill narrow.                                                                                              
                                                                                                                                
CHAIRMAN TAYLOR  asked what rehabilitation provisions  are contained                                                            
within the bill.                                                                                                                
                                                                                                                                
REPRESENTATIVE  ROKEBERG replied  the primary  one is the long  term                                                            
mandatory  treatment.   In  addition, the  fiscal  notes expand  the                                                            
ASERP  or  the  initial  assessment,  as  well  as  other  treatment                                                            
elements  that normally  occur for  those defendants  found to  need                                                            
additional treatment.   The most innovative part makes treatment for                                                            
long term, incarcerated substance abusers mandatory.                                                                            
                                                                                                                                
CHAIRMAN  TAYLOR asked if,  in some instances,  mandatory  treatment                                                            
could last for as long as one year.                                                                                             
                                                                                                                                
REPRESENTATIVE   ROKEBERG   said  it   could;   the  Department   of                                                            
Corrections will  have to make a judgment call about  the timing and                                                            
length of treatment.   The problem with voluntary  treatment is that                                                            
some inmates succeed  with treatment but others do  not even attempt                                                            
it.                                                                                                                             
                                                                                                                                
CHAIRMAN  TAYLOR noted  that not  everyone incarcerated  under  CSHB
4(FIN)am will be serving lengthy terms.                                                                                         
                                                                                                                                
REPRESENTATIVE ROKEBERG  said he was trying to focus on the habitual                                                            
drunk driver.                                                                                                                   
                                                                                                                                
CHAIRMAN TAYLOR  said with a ten-year  look-back, a person  could be                                                            
arrested  with a .04 BAC  who had a DUI  nine years prior,  and that                                                            
person would lose his or her license and car for 10 years.                                                                      
                                                                                                                                
REPRESENTATIVE  ROKEBERG  clarified  that  is  possible on  a  third                                                            
offense.                                                                                                                        
                                                                                                                                
CHAIRMAN  TAYLOR  asked if  the ten  years  is a  minimum  mandatory                                                            
sentence.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  ROKEBERG said  in 1995 the  legislature changed  the                                                            
third offense  to the felony  level.  That  has not been changed  in                                                            
CSHB 4(FIN)am,  but  the anomaly  that happened  with the  five-year                                                            
look-back was  changed; i.e., a third offense within  the fifth year                                                            
was  a  felony,  but  a third  offense  in  the  sixth  year  was  a                                                            
misdemeanor. He felt that  was unfair and, in addition, he wanted to                                                            
clarify that a third offense is a felony.                                                                                       
                                                                                                                                
CHAIRMAN TAYLOR said hopefully  the vast majority of people affected                                                            
by this bill will be those with a high rate of recidivism.                                                                      
                                                                                                                                
REPRESENTATIVE  ROKEBERG pointed out  that over 73 percent  of first                                                            
offenders do not re-offend.                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR asked within  what time period those 73 percent were                                                            
measured.                                                                                                                       
                                                                                                                                
REPRESENTATIVE ROKEBERG said within three years.                                                                                
                                                                                                                                
CHAIRMAN TAYLOR asked what  the percentage is over a ten-year period                                                            
and expressed  concern  that it is  unlikely that  such records  are                                                            
available.                                                                                                                      
                                                                                                                                
TAPE 01-31, SIDE B                                                                                                            
                                                                                                                                
CHAIRMAN TAYLOR  said maybe 30 to 40 percent no longer  drink at all                                                            
but  they will  not be  able to  work for  10 years  if they  cannot                                                            
drive.                                                                                                                          
                                                                                                                                
REPRESENTATIVE  ROKEBERG suspected the percentage  would not be very                                                            
high.   He  noted the  numbers start  falling  off to  less than  10                                                            
percent for major habitual offenders.                                                                                           
                                                                                                                                
CHAIRMAN TAYLOR asked if  less than 10 percent of habitual offenders                                                            
will be "turned around" with treatment programs.                                                                                
                                                                                                                                
REPRESENTATIVE ROKEBERG said it is the opposite.                                                                                
                                                                                                                                
CHAIRMAN TAYLOR  said that is why he asked about the  rehabilitation                                                            
program.  He asked if Representative  Rokeberg is assuming that some                                                            
of these people will not drink anymore.                                                                                         
                                                                                                                                
REPRESENTATIVE  ROKEBERG  said, "Absolutely,  that's  why the  whole                                                            
package,  particularly  with  the  therapeutic  courts -  the  other                                                            
provision we have  there - we believe that we will  make progress in                                                            
rehabilitation and treatment."                                                                                                  
                                                                                                                                
CHAIRMAN  TAYLOR asked  how the  rehabilitated  individuals will  be                                                            
treated  in contrast  to the  habitual  offenders  that continue  to                                                            
drink and what  benefit the rehabilitated  individual will  get from                                                            
complying.   He said the  loss of a person's  license often  affects                                                            
that person's ability to earn a living.                                                                                         
                                                                                                                                
REPRESENTATIVE ROKEBERG  agreed but suggested the person could get a                                                            
temporary license to get to and from work.                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR  disagreed and said  CSHB 4(FIN)am does not  provide                                                            
for a temporary license for that 10-year period.                                                                                
                                                                                                                                
SENATOR THERRIAULT  asked if the bill has provisions  with regard to                                                            
driving with  a revoked license that  trigger other suspensions  for                                                            
longer  periods of  time  or whether  everything  is tied  to a  DUI                                                            
conviction.                                                                                                                     
                                                                                                                                
MS. SEITZ said the latter.                                                                                                      
                                                                                                                                
SENATOR DONLEY  said his concern about Section 21  is that the court                                                            
has standards  for an affirmative  defense  if a person acts  out of                                                            
fear.    He believes   the statute  sets  out  the  tests  for  that                                                            
standard, yet  Section 21 doesn't seem to have any  trigger tests at                                                            
all.  It appears  that anyone could  assert that they acted  in fear                                                            
of domestic  violence and would automatically  be exempted  from the                                                            
provisions of the bill.  He asked Mr. Guaneli to comment.                                                                       
                                                                                                                                
MR. GUANELI said Senator  Donley's characterization of Section 21 is                                                            
accurate.  Under existing  statute, a person who is forced to commit                                                            
a  crime  in order  to  avoid  a greater  harm  has  an affirmative                                                             
defense, but the person  must present some evidence.  The Network on                                                            
Domestic  Violence  and Sexual  Assault did  not  want the  domestic                                                            
violence victim to even be charged and have to provide evidence.                                                                
                                                                                                                                
SENATOR DONLEY  said his  concern is that  many of these  situations                                                            
will involve spouses who  use the same vehicle.  CSHB 4(FIN)am seems                                                            
set up to  allow abuse of  the law, whereas  if one was required  to                                                            
follow the  normal law [affirmative  defense], some sort  of measure                                                            
is involved.                                                                                                                    
                                                                                                                                
MR. GUANELI agreed  that is a possibility.  He said  he would prefer                                                            
to rely on the existing law which involves necessity and duress.                                                                
                                                                                                                                
CHAIRMAN  TAYLOR  asked  Representative   Rokeberg  to  clarify  his                                                            
statement  that he lost a  vote on the floor  on a provision  he was                                                            
trying to change.                                                                                                               
                                                                                                                                
REPRESENTATIVE  ROKEBERG said that provision pertained  to mandatory                                                            
versus discretionary forfeiture.   He said the floor vote changed it                                                            
back to discretionary.                                                                                                          
                                                                                                                                
SENATOR  THERRIAULT  asked  for an  example  of a  case  in which  a                                                            
person's vehicle would be impounded or sold.                                                                                    
                                                                                                                                
REPRESENTATIVE ROKEBERG  said, excluding an offense in Anchorage and                                                            
Fairbanks,  under  existing  law,  law  enforcement  officials  will                                                            
impound  the vehicle  initially  when a  person is  arrested.   CSHB
4(FIN)am  will  provide  for  the confiscation  of  plates  and  the                                                            
release of the vehicle  with a temporary permit.  After adjudication                                                            
and  the  finding,  the judge  could  require  confiscation  if  the                                                            
offense is a second or third.                                                                                                   
                                                                                                                                
SENATOR THERRIAULT asked  if the vehicle has to be registered in the                                                            
offender's name.                                                                                                                
                                                                                                                                
REPRESENTATIVE  ROKEBERG said he believes  the offender has  to have                                                            
an ownership interest in the vehicle.                                                                                           
                                                                                                                                
SENATOR THERRIAULT  said for a first offense, the  spouse would have                                                            
to get  the vehicle re-registered  in his  or her name, thereafter,                                                             
the offender  would  be driving  a borrowed  car.   He asked if  the                                                            
judge would have the latitude to seize the vehicle.                                                                             
                                                                                                                                
REPRESENTATIVE  ROKEBERG said  he doesn't believe  so, which  is one                                                            
reason he  didn't want the  civil procedures  used in Anchorage  and                                                            
Fairbanks. In Anchorage and Fairbanks they use a civil action.                                                                  
                                                                                                                                
SENATOR THERRIAULT's next comment was inaudible.                                                                                
                                                                                                                                
REPRESENTATIVE ROKEBERG  said under current statute a person has the                                                            
right to assert ownership.                                                                                                      
                                                                                                                                
CHAIRMAN TAYLOR asked Representative  Rokeberg if he has statistical                                                            
information from the District  Attorney's Office or the court system                                                            
on the actual days of sentence  being given on average by the courts                                                            
in the state for a first, second, and third offense.                                                                            
                                                                                                                                
REPRESENTATIVE  ROKEBERG said he has  not seen the actual  number of                                                            
days, but he found  the prosecuting community to be  frustrated that                                                            
the  court  system has  tended  to  default to  the  lowest  minimum                                                            
sentence it can impose.                                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR  noted, "Well, the previous low minimums  were 120 -                                                            
you've  gone up  to 180,  240  - you've  gone  to 360,  360 was  the                                                            
minimum  before  -  you've now  gone  to  440."   He  asked  whether                                                            
Representative Rokeberg  had any information to show that sentencing                                                            
was occurring at those levels or below.                                                                                         
                                                                                                                                
REPRESENTATIVE  ROKEBERG  said he  has a  sentencing  report but  he                                                            
could not recollect the amount of time.                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR  said Representative  Rokeberg also came  up with an                                                            
extensive  list for  seven different  standards  for first,  second,                                                            
third, fourth,  and more offenses.  He pointed out  the existing law                                                            
requires  not  less  than 60,  120,  240,  and 360  days  for  those                                                            
offenses.   He asked Representative  Rokeberg  if he found  that the                                                            
court system was not increasing the fines.                                                                                      
                                                                                                                                
REPRESENTATIVE  ROKEBERG explained  that one  reason for stepped  up                                                            
fines in  the bill was that  they were recommended  by the  DUI task                                                            
force  in  Anchorage.    Also,  during  substantial  discussions  in                                                            
committees,  there  was a  feeling that  the recommendation  of  the                                                            
confiscation   of  a  permanent  fund  dividend   would  be  a  good                                                            
deterrent.   However, because of priority  lists for permanent  fund                                                            
dividends,  the committee  decided to  use an  equivalent amount  or                                                            
close  to it  to catch  people's  attention  at the  first  offense.                                                            
Members decided  on $1500 for a first offense and  raised the others                                                            
from there.                                                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR said he  asked because he wondered if Representative                                                            
Rokeberg  had information  showing  the  courts were  sentencing  at                                                            
lower  amounts than  that  or at such  low  amounts he  felt it  was                                                            
important to impose the additional mandatory minimums.                                                                          
                                                                                                                                
REPRESENTATIVE  ROKEBERG  said that  is from  anecdotal evidence  he                                                            
received  from prosecutors.   He noted, "There  was a regular  time,                                                            
particularly because of  using [indisc.] credits for time served and                                                            
defaulting  to the minimum allowable,  that's what they would  use."                                                            
He also  pointed  out that  in response  to  a comment  made by  Mr.                                                            
McCune, the public defender,  a provision was added to the bill that                                                            
allows a judge to reduce the fine by half.                                                                                      
                                                                                                                                
SENATOR  DONLEY referred  to  Section 21,  and pointed  out that  AS                                                            
18.66.990  is the definition  of domestic  violence that contains  a                                                            
list of the  elements of domestic  violence, one is making  repeated                                                            
phone calls  at extremely inconvenient  hours.  He said if  a person                                                            
one formerly  dated  was inebriated  and called  at an inconvenient                                                             
hour and asked  to borrow a car, the  loaner would have a  foolproof                                                            
defense for  doing so.   He questioned whether  that is good  public                                                            
policy.                                                                                                                         
                                                                                                                                
REPRESENTATIVE ROKEBERG responded:                                                                                              
     Let me  just explain what happened  there.  We had -  this                                                                 
     is  the  enabling  section  of  the  law.    It's already                                                                  
     existing  law.  There's a recommendation  of the DUI  task                                                                 
     force that  we make that tougher so the original  draft of                                                                 
     the  bill had a tougher  section in  here.  What happened                                                                  
     is, the committee  didn't like that and then the  domestic                                                                 
     violence  people came  in before the  committee and  asked                                                                 
     that  we adopt  this.   So  we did  a  complete flip-flop                                                                  
     there.  It was like one  of those - a little bit of a last                                                                 
     minute  thing so, Mr.  Chairman, I'm  not married to  that                                                                 
     and I agree with [Senator]  Donley if it's not appropriate                                                                 
     at all...."                                                                                                                
                                                                                                                                
Number 1711                                                                                                                     
                                                                                                                                
SENATOR DONLEY moved to delete Section 21 [Amendment 2].                                                                        
                                                                                                                                
CHAIRMAN TAYLOR  announced that with  no objection, Amendment  2 was                                                            
adopted.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  ROKEBERG  clarified that  the standard  will not  be                                                            
lowered by Amendment 2 because the common law defense remains.                                                                  
                                                                                                                                
SENATOR THERRIAULT said  that the proponents of Section 21 will have                                                            
an opportunity  to provide more balanced language  and present it to                                                            
the Senate Finance Committee.                                                                                                   
                                                                                                                                
SENATOR DONLEY moved SCS  CSHB 4(JUD) from committee with individual                                                            
recommendations.                                                                                                                
                                                                                                                                
SENATOR THERRIAULT  objected and asked  for the total amount  of all                                                            
fiscal notes.                                                                                                                   
                                                                                                                                
REPRESENTATIVE ROKEBERG  said they amount to about $3.5 million with                                                            
the  five percent  assumption  that pertains  to  the .08  BAC.   He                                                            
pointed out  that is the net amount  because the bill will  generate                                                            
revenue.                                                                                                                        
                                                                                                                                
CHAIRMAN  TAYLOR stated  with no  objection, SCS  CSHB 4(JUD)  moves                                                            
from committee with individual recommendations.                                                                                 

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