Legislature(2007 - 2008)BELTZ 211

02/12/2008 09:00 AM Senate STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 185 SEX OFFENDER/CHILD KIDNAPPER REGISTRATION TELECONFERENCED
Scheduled But Not Heard
+= SB 201 PUBLIC FINANCE WEBSITE TELECONFERENCED
Moved CSSB 201(STA) Out of Committee
*+ SB 257 ADMINISTRATIVE CODE/REGISTER DISTRIBUTION TELECONFERENCED
Moved SB 257 Out of Committee
+= HB 101 UNIFORM TRAFFIC LAWS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                  HB 101-UNIFORM TRAFFIC LAWS                                                                               
                                                                                                                                
CHAIR MCGUIRE announced the consideration  of HB 101. [Before the                                                               
committee was CSHB 101(CRA).]                                                                                                   
                                                                                                                                
9:15:10 AM                                                                                                                    
RICK  VANDERKOLK, Staff  to Representative  Carl Gatto,  said the                                                               
ignition  interlock law  was  enacted in  2004  to prevent  drunk                                                               
drivers  from   repeat  offenses.   The  technology   is  getting                                                               
sophisticated. Rolling  tests are  done as the  offender breathes                                                               
into   the   breathalyzer   in   order   to   continue   driving.                                                               
Representative   Gatto   learned   that  one   municipality   had                                                               
difficulty  enforcing the  law. HB  101 was  drafted to  clear up                                                               
confusion for municipalities. The  first provision in the current                                                               
version  of the  bill is  that  municipalities may  not enact  or                                                               
enforce an  ordinance inconsistent with Alaska's  Uniform Traffic                                                               
Law Act. The second provision  clarifies sentencing procedures in                                                               
cases where interlocks are required.                                                                                            
                                                                                                                                
9:17:24 AM                                                                                                                    
RODNEY DIAL,  Lieutenant, Department  of Public Safety,  said his                                                               
department  supports this  bill.  It will  help  ensure that  the                                                               
ignition interlocks are used when  appropriate and thus will keep                                                               
our roads safer.                                                                                                                
                                                                                                                                
SENATOR BUNDE spoke  of a young fellow he was  just speaking with                                                               
who had  a checkered past and  was trying to straighten  his life                                                               
out.  The man  was strongly  supportive of  the interlock  system                                                               
that will allow him to drive to work.                                                                                           
                                                                                                                                
9:19:17 AM                                                                                                                    
MR. VANDERKOLK said there is  letter from Mayor Mark Begich, "and                                                               
it's a  response, after several  attempts to get a  response from                                                               
the  municipality.  They  provided   two  suggestions  and  we've                                                               
incorporated  those  in  the  latest   version."  Version  K  was                                                               
provided to Anchorage in March  of 2007 for further comments, and                                                               
he has not heard back. He assumes Anchorage is fine with it.                                                                    
                                                                                                                                
SENATOR  FRENCH said  the letter  from the  mayor referenced  two                                                               
statutory fixes,  but Senator French  doesn't see them  and would                                                               
like an explanation.                                                                                                            
                                                                                                                                
SENATOR BUNDE asked if state law is preeminent over city law.                                                                   
                                                                                                                                
SENATOR FRENCH said to the extent that there is a conflict.                                                                     
                                                                                                                                
9:21:46 AM                                                                                                                    
CHAIR MCGUIRE  said the best example  is in the closure  of bars.                                                               
The state laws allow  bars to close at 5 a.m.,  she noted, and so                                                               
there is always a little bit of conflict.                                                                                       
                                                                                                                                
9:22:12 AM                                                                                                                    
GERALD  LUCKHAUPT, Legislative  Council,  Division  of Legal  and                                                               
Research Services,  said he tried  to incorporate  Mayor Begich's                                                               
recommendations in Section 2 with the court determination.                                                                      
                                                                                                                                
SENATOR FRENCH  said the  bill envisions  that at  sentencing the                                                               
judge will determine  by a preponderance of  the evidence whether                                                               
the  person's  chemical test  was  either  0.16 or  0.24  percent                                                               
alcohol, and  then impose the interlock  period accordingly. What                                                               
happens if  the judge lets  that go by  and there is  no finding?                                                               
Will the municipal prosecutors protest?                                                                                         
                                                                                                                                
MR. LUCKHAUPT said the prosecutors  and court must comply. If the                                                               
court  fails  to,  the  sentence  will  be  illegal.  Anchorage's                                                               
failure to comply  with this law raises those  questions, and the                                                               
Department of  Law doesn't  want to  go in  and start  filing old                                                               
writs  of  mandamus  or prohibition,  which  don't  really  exist                                                               
anymore.  Something "in  the nature  of that"  still does  exist.                                                               
This  became an  easier way  to  address the  issue of  Anchorage                                                               
failing to comply  with the state law. Under state  law it has to                                                               
[comply].  It is  reflected  in the  earlier  letters, where  Mr.                                                               
McConnaughy  [Municipality of  Anchorage]  said he  was aware  of                                                               
this law but he  didn't like it and he never  presented it to the                                                               
Anchorage assembly. This is a way to address that.                                                                              
                                                                                                                                
9:26:00 AM                                                                                                                    
SENATOR FRENCH asked  if there might still be a  loophole for the                                                               
judge  in the  sentencing procedure.  The double  jeopardy clause                                                               
bars resentencing.  There is  no "shall" or  command to  a judge.                                                               
The defendant  could say the  judge didn't make the  finding. The                                                               
court should be required to  determine if the defendant was above                                                               
or below the stated alcohol levels.                                                                                             
                                                                                                                                
9:27:05 AM                                                                                                                    
CHAIR MCGUIRE said she agrees.                                                                                                  
                                                                                                                                
MR. LUCKHAUPT said,  "In our Title 28 sections we  don't use 'the                                                               
court shall make various determinations.'  We just say if this is                                                               
found, then  this has to  happen." It  is assumed that  the court                                                               
will do the right  thing and obey the law. He  said he could come                                                               
up  with  language  saying  "the   court  may  not  proceed  with                                                               
sentencing until  the court makes this  determination." He hasn't                                                               
chosen to do it in Title 28.  "I defaulted in the normal method …                                                               
assuming the court would comply."                                                                                               
                                                                                                                                
CHAIR  MCGUIRE  said, "When  you  look  at  the letter  from  the                                                               
mayor's office, I recognize that  putting the language that folks                                                               
recommend into  statute doesn't always  work." Page 1,  under the                                                               
title, the language does say  "shall, shall, shall." It is clear,                                                               
and the  basis is the  alcohol level.  If it reaches  that level,                                                               
the court shall impose the  ignition interlock. Senator French is                                                               
saying that by  adding "the court determining  by a preponderance                                                               
of the  evidence", which is fairly  low, a person can  wiggle out                                                               
of that  "shall" part.  Looking at  municipality recommendations,                                                               
which  is  ironic  because  they  are  the  people  who  are  not                                                               
complying, they seem to give the "shall".                                                                                       
                                                                                                                                
9:29:26 AM                                                                                                                    
MR. LUCKHAUPT said they have chosen  to take out a portion of the                                                               
whole law  and rewrite  in a disjointed  manner to  express their                                                               
opinion. "What  they have written  is not something that  will be                                                               
sufficient to  adequately address  that. So, it's  going to  be a                                                               
bit more  complicated. I can't  just … create that  two sentences                                                               
and still address  the entire issue in the whole  range of things                                                               
that can occur." He said he rewrote  it in a method that has been                                                               
done before in  Title 28. "I can  rewrite it as a  mandatory … if                                                               
that is  what the  committee wants.  I can rewrite  it to  put in                                                               
'shalls', but it won't look exactly like they've written that."                                                                 
                                                                                                                                
CHAIR MCGUIRE asked what it will  look like. "Would it simply say                                                               
'at sentencing, the court shall'?"                                                                                              
                                                                                                                                
MR. LUCKHAUPT said  it will have to refer to  whether a person is                                                               
convicted  under (a)  of this  section and  say "the  court shall                                                               
make  a  determination".  He  said  he  can  work  with  the  two                                                               
alternatives for blood alcohol levels.                                                                                          
                                                                                                                                
9:31:08 AM                                                                                                                    
CHAIR MCGUIRE said if Anchorage is  not complying, "we want to be                                                               
as strong as we can in the language."                                                                                           
                                                                                                                                
SENATOR FRENCH concurred. A little  wordsmithing can make it nice                                                               
and tight.                                                                                                                      
                                                                                                                                
SENATOR GREEN said  it looks like it is backward.  She asked what                                                               
the person is being accused of. Is the alcohol level the crime?                                                                 
                                                                                                                                
SENATOR FRENCH said  the crime is being over  0.08 [blood alcohol                                                               
concentration (BAC)]. All DWI defendants  who have been convicted                                                               
of being  over 0.08  will come before  the judge  for sentencing.                                                               
The judge  will then have  to determine  how high their  BAC was.                                                               
This is for sentencing, not for making charges.                                                                                 
                                                                                                                                
CHAIR MCGUIRE said some jurisdictions consider any impairment.                                                                  
                                                                                                                                
9:32:50 AM                                                                                                                    
MR. LUCKHAUPT  said under Alaska  law, an impaired driver  can be                                                               
less than 0.08 [BAC].                                                                                                           
                                                                                                                                
SENATOR GREEN asked if someone can be impaired with no alcohol.                                                                 
                                                                                                                                
MR. LUCKHAUPT said people can be impaired due to other things.                                                                  
                                                                                                                                
9:33:46 AM                                                                                                                    
CHAIR MCGUIRE said  she will set HB 101 aside  so the changes can                                                               
be made.                                                                                                                        
                                                                                                                                

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