Legislature(2003 - 2004)
03/23/2004 03:40 PM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 224-MINORS DRIVING AFTER CONSUMING ALCOHOL
CHAIR GARY STEVENS announced SB 224 to be up for consideration.
SENATOR JOHN COWDERY motioned to adopt committee substitute (CS)
\S version for SB 224. There being no objection, it was so
ordered.
CRYSTAL LOWNDES, staff to Senator John Cowdery, bill sponsor,
explained that the CS for SB 224 is based on the Texas model for
zero tolerance of underage drinking and driving. The sponsor is
worried about this becoming a larger problem and believes that
if the consequences aren't stiff enough, underage DUIs will
continue to escalate.
CHAIR GARY STEVENS asked Ms. Lowndes to explain how the CS
changes the most recent version of the bill.
MS. LOWNDES explained that it is currently an infraction for a
minor to operate a vehicle after consuming alcohol and the CS
makes the offense a class B misdemeanor, which is a criminal
offense.
SENATOR COWDERY asked her to explain how teens sometimes view
the issue.
MS. LOWNDES told members that it's not uncommon for teens that
have been stopped for underage drinking and driving to shift the
blame to someone else.
SENATOR GRETCHEN GUESS asked how this change would stand up in
court and what the process would be for determining that a minor
is operating a vehicle after consuming alcohol.
MS. LOWNDES said that a .02 blood alcohol concentration (BAC)
level is on the books now and the legislation doesn't change
that.
SENATOR GUESS asked if .02 is currently in statute.
MS. LOWNDES said yes.
SENATOR GUESS asked for the definition of vehicle.
MS. LOWNDES didn't think there was a definition in the statute.
SENATOR GUESS suggested clarifying the issue because there would
be a problem if this were to become law.
SENATOR COWDERY noted that Ms. Lowndes had spoken with the
Commissioner of Public Safety.
MS. LOWNDES added that Commissioner Tandeske gave her the
impression that this wouldn't change how things are done. She
stated:
It won't change the process of what they go through
when they're pulled over on the side of the road and
they're cited -they're released to their parent's
custody.... The Commissioner has also led me to
believe that there are laws currently in place,
specifically AS 04.16.050, it's the minor consuming,
possession, and consumption law. Section D of that law
states that a third offense is a class B misdemeanor,
which is the same as we're trying to pass here. So
along with that goes all the same penalties that are
in place in this CS. And those are already on the
books.
CHAIR GARY STEVENS summarized that the first arrest wouldn't
result in jail time, but a future arrest could bring a prison
term.
MS. LOWNDES added: "We wanted to keep the penalty for first time
offenders as close to what they are now because if they're a
first time offender you don't need to worry about them repeat
offending. Only 20 percent of the people that are cited with
MOVACs (minor operating a vehicle after consuming) are repeat
offenders. That's an estimate that I was given from MADD."
CHAIR GARY STEVENS asked if that means that 80 percent of those
stopped the first time aren't arrested again.
MS. LOWNDES said that's correct.
SENATOR COWDERY asked what information she got from the
Department of Motor Vehicles (DMV).
MS. LOWNDES told him that about 350 minors had their licenses
revoked for some reason in the past year.
SENATOR COWDERY asked about repeat offenses.
MS. LOWNDES didn't believe the state tracked the number of
licenses that were revoked two or more times.
SENATOR STEDMAN noted that the BAC level for adults is .08 then
asked for confirmation that this proposal was asking for a .02
BAC level.
MS. LOWNDES said the current intoxication level for a minor is
.08. In the original form, the bill lowered the level to .02 for
anyone less than 21 years of age. They have since changed the
bill to deal with a completely different statute so the BAC
level would remain at .08.
SENATOR COWDERY clarified, "This is not that you're driving
under the influence. I'm trying to stop our youths from drinking
and driving any amount."
SENATOR STEDMAN said he understood that, but he got a little
confused in the testimony. He asked if the bill would reduce the
current .08 BAC level to .02 for minors.
MS. LOWNDES nodded.
SENATOR STEDMAN reviewed the fiscal note and said it looks as
though 400 to 600 additional cases are anticipated with the more
stringent requirements.
MS. LOWNDES said those fiscal notes are based on the original
bill, but she would get new fiscal notes now that the CS was
adopted.
SENATOR STEDMAN opined they would be similar. because the same
.02 percentage is used.
MS. LOWNDES said, "We're not convicting them of a DUI at .02.
We're simply taking a law that's already in place and making it
a misdemeanor rather than an infraction."
SENATOR STEDMAN asked if there would be two levels.
MS. LOWNDES said that's correct.
SENATOR STEDMAN referred to page 3, line 13 of the CS and said
he didn't have any concerns about the concept, but he didn't
want to impose undue penalties on youths which would adversely
affect them later on. He suggested that license revocation and
other behavior modification was preferable to making them
criminals.
MS. LOWNDES pointed out that, under current law, the license is
revoked, the youth may be given community service, and a fine
may be assessed. She added, "It doesn't seem to be keeping
anyone from thinking twice about it so this merely makes it so
that repeat offenders, somebody that's coming in on their third
may not get a jail sentence, but somebody who's coming in on
their fourth, fifth, sixth - it's up to the judge...but we want
to have something there."
SENATOR STEDMAN asked how they decided on a .02 level.
MS. LOWNDES said this is an effort to make youths realize that
driving with any amount of alcohol in their system is against
the law.
SENATOR STEDMAN agreed with the direction, but he wanted to make
sure that youthful indiscretions weren't unnecessarily
penalized.
SENATOR GUESS noted that the definition of minor isn't in the
bill and asked if the intent is to include the ages of 14 to 21.
MS. LOWNDES said that's correct.
SENATOR GUESS thought it was interesting that minors weren't
defined as those less than 21 years of age. She then asked if
the definition of "consumed any quantity of alcohol" might be in
regulation because she couldn't find it in statute. "I'm
confused also between a .08 and .02." she said, because it's not
in statute.
CHAIR GARY STEVENS said a trooper was on the off net and could
respond if Ms. Lowndes didn't recall.
MS. LOWNDES said she would like that.
SENATOR STEDMAN continued to express reservations about the
long-term impact the bill might have on young people.
SENATOR COWDERY said they were simply trying to curtail drinking
at a young age and added that a lot is left to the judge's
discretion.
CHAIR GARY STEVENS commented that Senator Guess's question about
age is important and asked for verification that a 13 year old
may not operate motor vehicles under any condition.
MS. LOWNDES said she wasn't sure.
CHAIR GARY STEVENS said they could ask the troopers.
SENATOR STEDMAN stated: "For those folks that weren't in the
Senate Finance Committee last Monday, the Governor came in and
had some opening remarks and one of the remarks he made was the
amount of money that the State of Alaska pays concerning alcohol
abuse relative to schools. It's a large amount so it's duly
noted that it's a problem within the state - substance abuse and
alcohol in particular."
JEFFERY JOHNSON testified via teleconference to express support
for raising the offense to a class B misdemeanor. He reported
that he had nine DWIs and didn't do any jail time until the
fifth time. He said that if he'd been sent to jail sooner, he
might have faced the music and sought help for his alcoholism
sooner.
SENATOR COWDERY asked how much time he spent in jail and when he
took responsibility for his actions.
JEFFERY JOHNSON said he spent eight years, nine months and some
days in jail and began to take responsibility when he was
charged with a felony after his ninth DWI.
CINDY CASHEN, Executive Director of MADD Juneau, stated that she
was representing the four MADD Alaska chapters in support of the
CS for SB 224. "Driving is a privilege not a right. A person,
regardless of age, who continues to drink and drive should have
serious consequences, which would serve as a deterrent for
future drunk driving." It's repeat offenders who are responsible
for one-third of all DUI arrests and this bill deals with
habitual offenders, she said.
She reported that Fairbanks averages 40 drunken driving arrests
per month for those who are under 21 years of age. Between July
2001 and July 2002 there were 1,028 DUI arrests meaning that
about 480 of those were teenagers. Reading from DOT statistics
she said that of the 4,918 DUIs in Alaska in 2001, 3,107 were
first time offenders. There were over 1,000 second time
offenders and more than 450 third time offenders. "We have a
significant number of repeat drunk drivers and we have a
significant number of them that are teenagers." This is part of
a solution and judges would appreciate that the bill simplifies
matters.
SENATOR GUESS asked for clarification regarding no prison time
between .02 and .08.
MS. CASHEN said she's foggy on that point and Annie Carpeneti
would be the one to ask.
CHAIR GARY STEVENS asked Lieutenant Storer if it's true that a
13 year old can't legally operate a motor vehicle under any
circumstance.
LIEUTENANT AL STORER, Alaska State Trooper, stated that they
could drive on private property, but not on any other property.
CHAIR GARY STEVENS commented that, in that case, the bill
concerns youths 14 to 21 years of age.
LIEUTENANT STORER said that's correct, but that's not to say
that an officer wouldn't have contact with someone who is not
yet 14 and driving.
SENATOR GUESS asked if .02 is in regulation or statute because
she couldn't find it.
LIEUTENANT STORER said he honestly didn't know where the .02
came from.
PATTY WARE, Division Director for Juvenile Justice, Department
of Health and Social Services, stated that she was working from
\version Q so she was adjusting her testimony based on what she
was hearing.
She noted that much of the testimony was mixing apples and
oranges. "We have a set of DUI statutes that address drinking
and driving when the BAC is .08 or higher - for both juveniles
and adults," she said.
SB 224 isn't about DUI statutes, she emphasized. The reference
to .02 BAC is confusing, because it's not in existing statute or
the \S version committee substitute.
TAPE 04- 20, SIDE B
4:25 pm
CHAIR GARY STEVENS acknowledged the point.
MS. WARE said that current statutes regarding MOVACs don't
require any level of impairment. The department is supportive of
any proposal promoting a graduated sanction approach to this
serious concern, but they have significant concern about raising
the classification to a class B misdemeanor and the imposition
of jail time for a minor operating a vehicle after consuming
alcohol.
She pointed out that there are already provisions in statute to
send a DUI offender to jail. Furthermore, she said:
We in our own juvenile facilities have juveniles
report to secure juvenile facilities on a DUI charge.
That can and does already happen. The concern that we
have with respect to jail time with respect to this
particular statute is that MOVACs are in fact, a
status offense meaning that it's an offense based on
virtue of your age. We don't have similar statutes for
adults.
There are federal requirements in terms of the federal
Juvenile Justice and Delinquency Prevention Act that
put us in a bind in terms of any kind of incarceration
for status offenses. The administration has imposed
two specific bills, HB 487 and SB 340, which are
moving through the bodies as we speak, in terms of
helping us as a department, essentially beef up our
compliance with the JJDP Act and so this would, in
essence, make that more difficult.
With respect to other possible options, the other
thing I would say is that I'm not real clear that the
existing statute is broken. We all agree that we
should stiffen the penalties and increase them if in
fact offenders are coming back and repeating that same
offense. But I'm a little bit confused by this. I
don't know if we've got anybody on from DMV, but we
got data from the Division of Motor Vehicles and in
fiscal year 2003 there were 387 juveniles picked up
under the MOVAC statutes. In terms of the re-offense
rate it's fairly low - seven percent. Ninety three
percent of those kids were first time offenders and
did not come back.
Would we like it to be higher than ninety three
percent? Yes. Does that mean that we should make the
repeat offense a [class] B misdemeanor? Changing the
sentencing structure in Alaska statutes is
complicated. It has, a lot of times, unintended
ramifications and consequences. I would propose to
this committee that we think very seriously before we
do that.
Again, other options are to keep it a violation, to
start with mandatory minimums both for the first time
and subsequent offenses.
SENATOR COWDERY asked if she had any information on how often
offenders re-offend.
MS. WARE said very few went beyond a second offense, but DMV
could articulate that better than she.
SENATOR COWDERY said his question was whether they were second,
third, fourth, or fifth time offenders and then reflected on Mr.
Johnson's testimony.
MS. WARE warned that, "We need to be very mindful, again, at the
difference between adults and juveniles - of the requirements
that we have to address juveniles in a different manner than we
work with adults. That doesn't mean that that sometimes doesn't
include periods of incarceration. As I said, under existing DUI
statutes, we are allowed to put juveniles in jails when they
commit those offenses. But this particular approach is, in fact,
a status offense and that, as I said, poses some additional
problems. I would also submit to the committee that in terms of
repeat offenders, we need to be focused, not just on holding
them accountable, which is a critical piece, but we also need to
be focused on what we need to do to make sure they get whatever
assistance and/or screening and/or treatment so that they don't
come back to us. It's a complex issue and I think that sometimes
we might be tempted to try to solve that through means that are
too simple."
SENATOR GUESS asked her to explain how the bill might impact
compliance with the JJPD Act and therefore federal funds.
MS. WARE said they aren't allowed to put status offenders in
either juvenile or adult jails. Status offenses are based on age
and are anything that doesn't apply to adults.
SENATOR GUESS repeated there's no ability to impose jail time
for offenses that are based on age.
MS. WARE noted that there are some obscure exceptions.
SENATOR GUESS said she just wanted to clarify that point.
SENATOR COWDERY announced that he had to leave and thanked the
Chair for hearing his bill.
CHAIR GARY STEVENS stated that there were several more people to
speak to the bill.
BARBARA BRINK, Director of the Alaska Public Defender Agency,
testified via teleconference to say she wanted to explain how
the bill might affect her agency. She noted that she was working
from the \I version rather than the \S version. She continued:
As I understand it, the bill is attempting to create a
new offense for minors. That is, minors having
consumed any alcohol operating a motor vehicle. This
currently is in our statute books as an offense, but
it is listed at what is called the infraction level.
A person who is convicted or found guilty of that
offense cannot currently be sentenced to jail time. As
I understand the current CS, that is to change and
this crime is to become a class B misdemeanor offense.
And that frankly Mr. Chairman has a huge impact on my
agency.
If a person is charged with an infraction, they are
not entitled to the free assistance of counsel if they
are indigent. However, if a person is charged with a
class B misdemeanor, they are entitled to the full
assistance of counsel and, frankly, to the right to
have a jury trial. So I think these are some of the
unintended consequences that are going to flow from
this bill.
I prepared a fiscal note for the original bill based
on the figures that the DMV gave all of us. And based
on the figures they gave us, we were approximating
that we would need the services of one additional
attorney in the Anchorage area since most of our minor
consuming and DWI cases involving minors have been in
Anchorage and Palmer.
I was asked whether my fiscal analysis would change
now that this crime went down to a class B misdemeanor
from the original bill, which had it as a class A
misdemeanor, and my answer, frankly, is no. There
isn't a definable quantity of less work involved in
representing somebody whether it's a class A
misdemeanor or a class B misdemeanor. The full panoply
of work experiences that we need to do in order to
provide the effective assistance of counsel would
still be required if it was a class B misdemeanor. And
frankly, it would still be required even if a person
was not authorized to receive jail time until it was
their second, third, or fourth offense.
As you might recall, the Legislature recently tried to
create a similar type of scheme involving minor
consuming cases. In the minor consuming cases the
child would initially get treatment and community work
service. It wasn't until their third offense that it
would be called a class B misdemeanor and they were
actually eligible for jail time. But this was
litigated before the Alaska Court of Appeals and the
court agreed that that makes it a class B misdemeanor.
If you can go to jail based on a conviction for an
earlier offense, even for those earlier offenses -
even if you can't get jail on those offenses you are
entitled to have representation and to have a jury
trial.
Frankly, the impact to the Public Defender Agency on
that change in the minor consuming statute was
enormous. Back in FY01, our agency represented a total
of 58 children charged with minor consuming. Last year
we represented 892 children on minor consuming
charges. So this has the potential of being a very
large change in the way we process these cases, and a
very large change in the way we defend these cases,
and a very large change in the punishment we impose. I
guess what we have to decide, as a matter of policy,
is if the change in punishment is worth all those
other costs that it is going to take.
I must agree we should remember that we are not
talking about a drunk driving bill. What we are
talking about is a very low presumption that alcohol
has been consumed. And as Patty Ware testified,
certainly the minors we represent now who have above a
.08 in their blood, they go to jail. They go to a
secure youth facility. They serve the same kind of
jail time that adults do.
Though we certainly already are tough on those kids
who are driving under the influence, the question is
how tough do we want to be on kids who have just
consumed any minor amount of alcohol, no matter how
small. I would have to say that my sense is that
unless we are prepared to pay for the huge increases
in prosecution defense and incarceration of these
children, that perhaps we should keep it at the level
that it currently is.
KERRY HENNINGS with the Department of Motor Vehicles stated that
she was available for questions.
CHAIR GARY STEVENS said he was sorry that Senator Cowdery had to
leave, but several questions were raised and it appeared that
the bill needed further work. He asked Ms. Lowndes to work with
the Department of Juvenile Justice and Senator Guess to satisfy
some of the issues that were raised.
MS. LOWNDES said she would be happy to do so.
CHAIR GARY STEVENS announced that it wasn't his intention to
slow the bill, rather to develop a reasonable bill that they
could all support. SB 224 was held in committee.
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