Legislature(2001 - 2002)
02/20/2002 01:42 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 40-REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT
MS. ANNE CARPENETI, Assistant Attorney General, Criminal
Division, Department of Law (DOL), said HB 40 addresses a problem
that does not arise very often but when it does it creates a
serious public safety problem. It also can create a lot of
anguish in the family of victims who are killed in automobile
accidents.
She described the situation when a motor vehicle accident is
caused by a person who violates a traffic law but does not commit
a crime but non-the less a death is caused. HB 40 addresses this
situation by requiring the court to revoke the driving privileges
for one year of a person who is convicted of violating a traffic
law and the violation was a significant contributing cause of an
accident resulting in the death of another person.
MS. CARPENETI explained that specifically before this license
revocation can occur:
· First a judge must find beyond a reasonable doubt that the
person committed the traffic violation.
· Then by clear and convincing evidence the court must find;
o The person was operating the motor vehicle that was
involved in the accident.
o The accident caused the death of another person.
o The violation of the traffic law was a significant
contributing factor in causing the accident and death.
She said the bill does allow a court to consider a request by the
driver for limited driving privileges. If the person can
establish that his or her ability to earn a living would be
severally impaired by loss of driving privileges the court can
issue a limited license for that purpose. In the House Judiciary
Committee they added another possibility for a limited license.
If the person can establish that his or her ability would be
severely impaired to give assistance as a primary care giver to
another person who is disabled the court could entertain a
request for a limited license.
MS. CARPENETI said when people drive in an unsafe way even if
they do not commit a crime but cause the death of another person
their privilege to drive should be revoked to protect other
drivers on the road, their passengers and people walking on
roads.
CHAIRMAN TAYLOR explained he did not have a problem with the
thrust of the bill. It was again a mandatory minimum, which he
always opposed in the court system, because he thought mandatory
minimums become the sentence. For example they have a three-day
mandatory minimum on drunk driving so what does every single
drunk driver get, three days. He said it is called mandatory
minimum but judges never seem to read the word minimum. They do
not give longer sentences because they get scared as soon as they
pop somebody for ten or fifteen days on a first offense every
public defender is going to make certain that they are
disqualified from ever doing a drunk driver case. Public
defenders probably should act on the behalf of their client. He
said these things sound like they are somewhat discretionary
within the law but once they establish these parameters of
mandatory revocation they become the only revocation. He said he
was concerned about that aspect of it.
CHAIRMAN TAYLOR gave an example of the other aspect that
concerned him. A single mom commuting home from work has picked
both her kids up. She slides on the ice and has a one-car
accident. She doesn't impact anyone else. The car flips around
a couple of times and one of the children is killed. Now she
just lost one of her children and on top of that somebody is
going to say she had been driving to fast for road conditions or
whatever because every officer that shows up at a wreck site
feels compelled to find some violation for the wreck having
occurred. Accidents don't happen anymore it was because you
violated something. He asked if they would suspend her driver's
license for one year when she has already lost a child in this
process. He said he was not talking about some drunk driver or
someone that is negligently driving and killing some stranger.
MS. CARPENETI said that was correct, if she was driving drunk
they could revoke her license for that reason. She said she did
share his frustration about mandatory minimums. She thought it
was shocking that everybody who is convicted goes to jail for
three days because drunk driving cases can be really varied. She
said in a sense this was not a mandatory minimum because there is
no range. It is a mandatory one-year. They don't range from
one to five years it's a one-year revocation.
MS. CARPENETI said the person Chairman Taylor was talking about
would have to be convicted and proven to have violated the
traffic ordinance beyond a reasonable doubt by a court. She
would be given a court appointed council and a jury trial in the
endeavor to determine whether or not she was guilty of the
traffic violation. Then the court would have to find by clear
and convincing evidence that whatever violation she was convicted
of was a significant contributing factor to the death of her
child. Ms. Carpeneti understood that would be a terrible
situation for any person to be in but maybe she should not be
driving her other child who is still alive.
CHAIRMAN TAYLOR said you are going to keep her off the road for
one year. That is what you are going to do.
MS. CARPENETI said under the circumstances but the court has to
jump through many hoops before it can come to that determination.
By the possibility of a driver's license loss she would have the
right to court appointed counsel and a trial by jury and some of
the other guarantees attended on a criminal case.
CHAIRMAN TAYLOR said he did not think the committee had any
concerns or objections to the 25 year old doing a 100 mph down
the Glen Highway and crossing the meridian or something. In
those instances the prosecutors office, our district attorney
would normally be charging negligent homicide, seeking a felony
charge and some serious time in jail. He said as far as he knew
our people are not reluctant to do that. This person is
distracted for a moment and instead of stopping on the yellow
light has gone on through it and t-boned somebody in the middle
of an intersection. Accidents do happen and yes there may have
been a violation but in this instance all you need prove is any
violation of any traffic law.
MS. CARPENETI said it would have to be a moving violation.
CHAIRMAN TAYLOR said those are his concerns it is not that he
does not support the concept, he does. He thought it was
probably another tool in the toolbox that they may need but he
had those concerns and appreciated her answers.
SENATOR THERRIAULT said he appreciated Chairman Taylor's stated
concerns because he had a lot of the same ones. Accidents do
happen but the person who puts the pedal to the metal, that is
not an accident, that is a choice. The person that drinks too
much has made a choice. The person that is spinning his wheels
and doing the brodies, that is a choice. He said the scenario
that Chairman Taylor laid out is one, and there are others, where
this is just going too far.
SENATOR THERRIAULT said last year Representative Fate and
Representative Coghill and himself met with a group of
constituents in his district that live out on Chena Hot Springs
Road. They expressed a lot of concern with the fact that the
privilege on our highways was so often used as a club to try and
shape the actions of the public. It is little consolation to
them when you say, we have not taken away your right to travel
about the community when it is 40 below zero and you live out at
40-mile Chena Hot Springs Road. If they cannot drive their car
you have taken away their access, their ability, because many
times they can not even go to a neighbor next door because the
neighbor is maybe a mile away. He had concerns over the need for
the legislation.
MS. CARPENETI said it was brought to their attention by people
who have lost loved ones under these circumstances. For example
where the driver of a car had fallen asleep. This is a really
common problem not only in Alaska but throughout the country. It
is a common driving problem to fall asleep and then cross over
the centerline and kill somebody. They may only have a small
fine for doing so. It seemed to her for the safety of the
driving public it would be worthwhile for that person to take
some time off driving and maybe jump through the hoops necessary
to get a drivers license back after it had been revoked before he
or she thinks about driving when he or she is to tired or takes
their eyes off the road and causes such serious damage. She said
there were people on the teleconference that might help inform
the committee of the concerns that they brought to DOL.
SENATOR ELLIS asked about the language "contributing factor,
significant factor" and asked her to talk them through that.
MS. CARPENETI explained it is on page 2 of the bill. These terms
are terms judges use and apply all the time. The court must find
a person guilty of violating the traffic law by proof "beyond a
reasonable doubt" and the person must have a lawyer and the right
to a jury trial if he or she chooses. If a person is convicted
of a traffic law the court will revoke the privilege to drive if
the court finds by "clear and convincing evidence". "Clear and
convincing evidence" is a higher standard than "beyond a
reasonable doubt". You have to clearly show that the individual
was driving the motor vehicle in a car that was involved in an
accident. The accident caused another person's death and the
violation of the traffic law was a significant contributing cause
of the accident. So the court would have to make a finding by
clear and convincing evidence, the real crux of it is, that the
violation of the traffic law was the significant contributing
cause of the accident that resulted in the death of another
person in order to loose their license under this bill. These
are term that courts use all the time; significant, contributing
cause. She did not think there would be a problem with
definitions.
SENATOR DONLEY asked what happened to these people after they
lost their license and they go ahead and drive without it.
MS. CARPENETI said they would hope they did not but if they did
then they would be committing a crime.
SENATOR DONLEY asked what was the punishment for that crime.
MS. CARPENETI said she thought that was a maximum of one year in
jail.
SENATOR DONLEY said that was the maximum but was there any
minimum.
MS. CARPENETI said she did not believe so.
CHAIRMAN TAYLOR said he thought there was additional revocation
of license.
MS. CARPENETI said for conviction there could a revocation of
license and she thought for the first one it was only 60 days.
CHAIRMAN TAYLOR said they used to have a mandatory minimum on
that. It was like five or ten years and we had people caught
driving that couldn't get their license for 30 some years.
MS. CARPENETI said yes that used to be the most serious mandatory
penalty in the state in the 70's.
CHAIRMAN TAYLOR asked if she thought right now, in answer to
Senator Donley's question, it was probably 60 days for the first
violation.
MS. CARPENETI said that was right. For conviction of the first
offense and then one year for the second and three years for the
third.
SENATOR DONLEY asked when you are saying 60 days are you saying
the maximum allowable.
MS. CARPENETI said additional revocation of license for
conviction.
SENATOR DONLEY said he remembered voting against a piece of
legislation about ten years ago that revoked an existing law
where it was a mandatory ten days in jail if you drove on a
suspended license.
MS. CARPENETI said that was a time before they had mandatory
terms. That was the most serious mandatory sentence in the State
of Alaska in the 70's.
SENATOR DONLEY said now we don't have any minimum for a first
time violation for driving without a license.
MS. CARPENETI said she was looking at the revocation. Under AS
28.15.181 the first offense would be 60 days revocation of
license.
SENATOR DONLEY said and no mandatory jail time. Of course they
have already lost their license for a year then we take the
license for another 60 days.
CHAIRMAN TAYLOR said Senator Donley brought up a major issue,
directly related to this. They have set up a lot of laws so they
are going to result, especially with Driving While Intoxicated
(DWI), in revocation of a driving privilege or the opportunity to
get one for some term of years. They just keep driving; they
just go use somebody else's car and they just keep driving. It
is kind of like this hoop thing; you are always trying to catch
up with the end of it. From his discussions with state troopers
and city police officers it is a continuing and expanding
problem. They are not insured, they don't have a drivers license
but they are out there driving to and from work and they may be
legally driving down the road but they are illegal and should not
be there. He thought it is a concern many of them shared.
MS. CARPENETI said they shared that concern. This bill doesn't
necessarily address repeat drivers driving with their license
suspended or revoked but that is a concern because we all drive.
SENATOR THERRIAULT said along that line just look at the police
blotter in the newspaper. They get caught for drunk driving time
after time and also for a suspended license. That group of
people, because of the drinking, seems to get caught more often.
But the person who just ran through a red light or slipped off
the road and had a roll over not because they were hot roding or
anything, they are not necessarily going right back into the
system because they had a perfect driving record for 30 years and
just hit the slick spot the one time. They are going to be out
there driving with no license anyway. If we have learned one
thing from the DWI situation it is that they are going to drive
anyway. He said he understood the frustration of family members
seeing somebody who has caused the loss of a loved one being able
to continue to drive. But he thought this sort of a solution
really did not get them anywhere.
SENATOR COWDERY said if you get pulled over for a DWI and refuse
to do the breathalyzer that was an automatic loss of license but
it was not proven they were really under the influence. They
can't take breath samples without a search warrant unless there
is an accident involved and somebody is killed. He thought the
penalties that exist now did not solve anything. He thought they
should have far more stringent penalties.
MS. CARPENETI said there are a lot of problems with DWI and
refusing a breathalyzer. This legislation really is just focused
on maybe six to ten accidents that happen a year that result in a
death to a person by another person who was not committing a
crime. They were not committing reckless driving but may have
been driving negligently. For that reason they are not safe
enough drivers. They caused a death because of their careless
driving even though it did not arise to reckless driving or
criminal negligent homicide or a crime. But they were driving in
a careless manner and for that reason it seems reasonable to take
their license away for a period of time so maybe next time they
won't drive negligently.
SENATOR COWDERY said taking their drivers license away really
does something. Does that mean they are going to take a cab or
have somebody else drive them or does this mean if you don't
catch them they are going to drive, if you do catch them then
what.
MS. CARPENETI said if they did drive they are committing a crime.
We hope this would have some effect on drivers who loose their
license. She said she was sure there are a lot of people who
don't pay attention to court orders and revocation of license but
there are people who do.
MR. MARK CAMPBELL, Palmer resident, testified in support of HB
40. He shared from their own experience having lost their son in
an accident. In their circumstances they had a 19-year-old son
and he had a car full of kids with him. Another vehicle was
speeding in the opposite direction and that driver lost control
of their vehicle and collided with their son's car killing two
kids and injuring four others.
They found there was no recourse whatsoever. Within one year the
same young man that caused that accident had another accident
killing two other young men. They feel there needs to be
something if you are not under the influence of alcohol or drugs
but yet you are acting irresponsible with a vehicle. The courts
need to determine whether it is acting outside of a reasonable
manner. They lost a son, their good friends lost their son, and
four other children were hurt. The young man was speeding, lost
control of his vehicle and got a ticket for speeding. That was
it, a ticket for speeding. As a family of a victim he wanted to
see that there was something that would cause an individual to
take some time away from the privilege of driving.
MR. CAMPBELL said there needs to be something for the victim's
family from the person causing the loss. Sharing from his
experience they found there was nothing they could do. Then they
were terribly grieved over the fact that within a year another
two lives were lost in that situation.
CHAIRMAN TAYLOR said he did not understand on the first accident
why he was not charged with negligent homicide. Speeding alone
resulting in death should have been sufficient grounds for
negligent homicide and that is a felony. He asked if he was
charged for negligent homicide on the second incident.
MR. CAMPBELL said on the second incident he was driving the
vehicle and lost control. The other two boys that were killed
were not able to testify so there was no witness.
In the first situation the only eyewitnesses were in a vehicle
that was in front of him. They viewed his speed coming from
behind so rapidly that driver pulled over. The only way they
could testify that they felt he was speeding was through a
rearview mirror so again no eyewitness. Of course no one was
there to actually clock that he was speeding so they could only
judge it by the fact there were no skid marks on the highway. He
just simply lost control of his pickup.
CHAIRMAN TAYLOR said that was a terrible situation and was sorry
that Mr. Campbell had to come in and testify. He said he thought
Mr. Campbell understood the concerns the committee had raised.
He asked if the family contemplated any form of civil liability.
MR. CAMPBELL said they did go to court not as a civil suit but
simply on his driving ticket. They asked that rather than he
being able to just pay the ticket they felt the court should have
him serve community service in the area of hospice care or
something like that. Given the special circumstances the court
did that and the young man did not argue.
He was a young man also, 19 years old, and they did not want to
plague his life trying to pursue some sort of payment for their
loss. But Mr. Campbell felt in this type of situation the loss
of license for a year would have been excellent and could have
saved two other lives and possibly cause some growing up.
MR. ALBERT TAYLOR said his son was killed by the driver of a
motor vehicle. That driver chose to operate his vehicle in a
careless, irresponsible and unsafe manner. He felt strongly that
a person operating a vehicle carelessly, breaking traffic laws
and killing others should have their privileges to drive revoked.
He urged the committee to pass HB 40. It would help make our
roads safer.
CHAIRMAN TAYLOR said he was sorry for his loss and thanked him
for testifying.
MS. MARY MARSHBURN, Director, Division of Motor Vehicles (DMV),
said Ms. Carpeneti adequately covered the history or reasons
behind the bill as well as the specifications of the bill itself
and what it intends to do. She addressed two items.
· The fiscal note reflects there are a very small number of
these incidences each year. Obviously very painful for
the people who loose family members in these crashes.
· In answer to Senator Donley's question about driving
without a license. Driving without a license carries an
additional ten days in jail and a minimum of 90 days
additional revocation, which does not run concurrent to
any existing revocation.
SENATOR DONLEY said he did not think there was any mandatory jail
time for a first time conviction while license is suspended.
MS. MARSHBURN said she would be happy to look it up but that
information came from DMV staff.
CHAIRMAN TAYLOR said the committee would look into that also. He
said there may be some misunderstanding about how the law is
either applied or how it is currently written.
TAPE 02-05, SIDE B
SENATOR DONLEY asked Ms. Carpeneti if it a mandatory one-year
suspension no matter what the nature of the traffic violation was
if there is clear and convincing evidence that the elements are
here.
MS. CARPENETI said that was correct but they have to have a
conviction and then clear and convincing evidence that the
traffic violation was a significant contributing factor.
SENATOR DONLEY said this could be an improper lane change or a
failure to signal and there is no discretion on the part of the
judiciary. He said in the eight years he had been in the
legislature they had tried a lot of mandatory sentencing
proposals. He thought the executive branch had opposed every
mandatory sentence. The executive branch wanted to go in the
opposite direction and have less mandatory sentencing.
MS. CARPENETI said this was a license revocation not a result of
a conviction of a crime. It is a license action and the purpose
is to make our roads safer. It is not necessarily completely to
get this particular person off the road but to make our roads
safer.
SENATOR COWDERY asked in her mind what would happen if in fact
the one-year revocation was imposed but during that year period
he was caught driving again.
MS. CARPENETI answered he could be charged with driving with a
license suspended. If he was driving and he had a limited
license that would be another issue. It depended on the
circumstances. This revocation would be concurrent with any
other revocation in law.
SENATOR DONLEY said he noticed the CS bill had been referred to
the Rules Committee. He asked if that was accurate. It was
originally a Rules Committee bill and he didn't understand why it
said it was referred to the Rules Committee. He had some
question about the fiscal note and wanted to know if it was
coming to the Finance Committee and he could not tell that from
the bill document. He thought there was something inaccurate
about the referral section. It did not say judiciary but they
were there hearing it.
CHAIRMAN TAYLOR said the referrals are judiciary and then
finance. That was on the referral sheet that came with it.
He said he would entertain a motion. No motion was made.
SENATOR ELLIS asked for an at ease.
TAPE 02-06, SIDE A
[Recorded from the net]
CHAIRMAN TAYLOR called an at ease.
CHAIRMAN TAYLOR reconvened the meeting and announced he would
hold the bill for a week to try to resolve some of the concerns.
He stated it was his intention to move the bill from committee.
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