Legislature(1993 - 1994)

03/16/1994 09:10 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 CHAIRMAN LEMAN brings up HB  61 (LOWER ALCOHOL LIMIT TO 0.08 FOR              
 OMVI'S) as the first order of business before the Senate State                
 Affairs Committee.  The chairman asks the prime sponsor to join the           
 committee and give a brief statement on HB 61.                                
 Number 022                                                                    
 REPRESENTATIVE JIM NORDLUND, prime sponsor of HB 61 states the bill           
 will lower the blood alcohol limit from .0.10 to 0.08.  It is                 
 commonly known as the 0.08 bill.  HB 61 is necessary because a                
 person with a blood alcohol level of 0.08 is significantly impaired           
 in their ability to operate a motor vehicle.  Many studies conclude           
 this statement in findings showing impairment in a person's                   
 reaction time, tracking, emergency response time, coordination,               
 comprehension, eye movement, and other physical responses needed to           
 safely operate a motor vehicle.  Representative Nordlund cites                
 statistics on blood alcohol levels.                                           
 REPRESENTATIVE NORDLUND states the main opposition to HB 61 is                
 coming from the bar and restaurant association owners in the state.           
 That ends Representative Nordlund's testimony.                                
 Number 095                                                                    
 CANDY LIGHTNER, American Beverage Institute (ABI), testifying from            
 Washington D.C. states the institute is comprised of restaurants,             
 hotels, and recreation centers.  The ABI's agenda is to research              
 public policy issues on adult beverages and to inform the                     
 membership, legislators, and the media about the facts regarding              
 these issues so that informed decisions can be made.  The ABI's               
 message to restaurant employees and the people they serve                     
 emphasizes moderation in drinking and responsibility in driving.              
 MS. LIGHTNER thinks the problem of drunk driving today is greatly             
 diminished from the early 1980's.  Ms. Lightner says the problem              
 now is to figure out how to treat the problem of drunk driving                
 today, versus the problem in the 1980's.  ABI suggests seeking out            
 the truly dangerous drunk drivers.  ABI agrees with an Alaska State           
 House of Representatives Task Force report on drunk driving which             
 states little has been done to address the problem of the repeat              
 drunk driver offender, the cause of most of our alcohol related               
 highway accidents.  That is why ABI opposes lowering the BAC (Blood           
 Alcohol Content) to 0.08: it does not address the problem of repeat           
 offenders.  HB 61 will not stop repeat offenders from driving while           
 MS. LIGHTNER states most persons convicted of DWI have BAC's of at            
 least 0.15, and many have levels of 0.20 and higher.  These persons           
 have driven while intoxicated many times before, and many times               
 without getting caught.  Ms. Lightner cites statistics from several           
 MS. LIGHTNER states ABI has had contact with law enforcement                  
 personnel, judges, and legislators who agree with ABI's position.             
 ABI was recently successful in having 0.08 BAC eliminated from a              
 bill in the State of Washington.  That bill is called the graduated           
 penalty bill, and would penalize high BAC drivers.  Unfortunately             
 it is politically correct for politicians to support lower BAC                
 MS. LIGHTNER questions whether there is any current evidence                  
 supporting a move to 0.08 BAC as effective public policy.  Ms.                
 Lightner cites more studies to support her statement.                         
 MS. LIGHTNER believes the legislature should concentrate on changes           
 that will impact the problem of high BAC drivers and repeat                   
 offenders.  These individuals are the ones who have consistently              
 violated exsisting laws, and are unlikely to respond to laws that             
 merely lower the BAC limit.  She states ABI would be happy to work            
 with the legislature on real solutions and urges the legislature to           
 consider ABI's perspective.                                                   
 CHAIRMAN LEMAN thanks Ms. Lightner for her testimony and asks if              
 members have any questions.                                                   
 Number 204                                                                    
 SENATOR ELLIS asks Ms. Lightner when she changed her affiliation              
 from MADD to the liquor industry.                                             
 MS. LIGHTNER replies she has not been involved with MADD for eight            
 or nine years.  She does not work for ABI itself, but for Berman &            
 Co., which is a government relations firm in Washington, D.C.  She            
 currently works with a number of different clients.  ABI happens to           
 be just one of those clients, and she agrees with them on the 0.08            
 BAC issue.                                                                    
 MS. LIGHTNER states that many people know her daughter was killed             
 by a drunk driver, but what many people do not know is that it was            
 the driver's fifth offense.  Two days before the driver killed Ms.            
 Lightner's daughter, he was involved in a hit-and-run crash and had           
 a 0.20 BAC.  The driver blacked out at the time he killed her                 
 driver, which means he had a very high BAC.  After he was released            
 from a half-way house, he was again arrested in a drunk driving               
 crash in which he injured somebody and had a 0.20 BAC.  About a               
 year and a half ago he was again arrested for DWI in the state of             
 Wisconsin.  He had a 0.20 BAC, and he was treated as a first time             
 offender.  Ms. Lightner wants the committee to know that she comes            
 from a very personnal level of involvement on why the high BAC                
 offender should be pursued.                                                   
 SENATOR ELLIS asks if the lobbying firm she works for represents              
 other liquor interests.                                                       
 MS. LIGHTNER responds the ABI is the only client of her firm, that            
 she is aware of, which involves the restaurant industry.  Ms.                 
 Lightner states she must say she doesn't really understand what               
 difference that could possibly make, and she does not know if that            
 question is asked of other lobbyists.                                         
 SENATOR ELLIS states that question is not out of character for him            
 in trying to figure out what a person's motivation is in pushing or           
 opposing legislation.                                                         
 MS. LIGHTNER states Senator Ellis should be well aware of what                
 restaurant's motivations are, because he has heard them often                 
 enough in the past couple of months.  Ms. Lightner says she comes             
 from a safety point of view, because she is not involved in the               
 restaurant industry and does not know all their financial                     
 ramifications.  But she does know the research, has read it, is               
 aware of it, and wants to help that position.                                 
 Number 248                                                                    
 SENATOR ELLIS tells Ms. Lightner it would be an understatement to             
 say her position carries very little credibility with him, given              
 who she represents as a business deal.                                        
 SENATOR ELLIS asks Ms. Lightner to clarify the term "serious drunk            
 drivers", and asks if that is opposed to non-serious drunk drivers            
 or non-dangerous drunk drivers.                                               
 MS. LIGHTNER responds she was not using the term to connote such a            
 thing as a non-serious drunk driver, but in reference to the most             
 dangerous drunk drivers on our highways.  Ms. Lightner states she             
 will remember Senator Ellis' comment about her credibility, and she           
 hopes he treats other lobbyists the same way, letting them also               
 know that they have variable credibility with him relating to who             
 they represent.                                                               
 SENATOR ELLIS states he believes he is consistent in his treatment            
 of lobbyists.                                                                 
 MS. LIGHTNER thanks the committee for allowing her to testify.                
 CHAIRMAN LEMAN thanks Ms. Lightner for her testimony.                         
 Number 260                                                                    
 SENATOR TAYLOR says some people have a tendency to determine a                
 human being's credibility based upon their occupation.  Senator               
 Taylor remembers when people used to do that based on race.  He               
 finds that basis as offensive as Senator Ellis' comments this                 
 morning.  Senator Taylor says he often disagree with people, but              
 does not find it necessary to impugn their personal integrity based           
 upon their occupation.  He is upset to hear that kind of comment,             
 and thinks it demeans the other legislators at the table.  He                 
 thanks Ms. Lightner for her testimony and acknowledges her personal           
 tragedy.  He does not believe Ms. Lightner has "sold out" by                  
 representing ABI.                                                             
 CHAIRMAN LEMAN hearing no further questions of Ms. Lightner, calls            
 the next witness.                                                             
 Number 284                                                                    
 REBECCA BROWN, National President, Mothers Against Drunk Driving              
 (MADD) wants to underscore how important it is to lower the                   
 allowable BAC to 0.08.  MADD has supported a BAC level of 0.08 for            
 more than ten years.  Ms. Brown cites various reports and                     
 statistics.  (A good part of Ms. Brown's testimony is not                     
 understandable due either to teleconference or taping problems.)              
 Number 380                                                                    
 SENATOR TAYLOR states it was difficult to understand much of Ms.              
 Brown's testimony, and asks if she can submit it to the committee             
 in writing.                                                                   
 MS. BROWN responds she will fax it to the committee today.                    
 SENATOR TAYLOR asks Ms. Brown to define ALR.                                  
 MS. BROWN replies ALR is the acronym for Administrative License               
 Revocation.  Ms. Brown explains the circumstances under which ALR             
 is used.                                                                      
 SENATOR TAYLOR states he believes ALR has been used for some time             
 in Alaska, but it was not clear in Ms. Brown's testimony what ALR             
 stood for.  He asks Ms. Brown if she has had an opportunity to                
 review Alaska's Statutes on drunk driving.                                    
 MS. BROWN replies that she personally has not, but someone with               
 MADD has done so.                                                             
 SENATOR TAYLOR urges Ms. Brown to review Alaska's Statutes, and               
 says he believes they are some of the toughest statutes in the                
 nation relating to drunk driving.  He says he is having a hard time           
 understanding how going from 0.10 to 0.08 BAC will have a                     
 significant effect on drunk drivers in Alaska.  Of course we                  
 haven't gotten to zero yet, and that is what we would all like to             
 achieve.  Senator Taylor wants Ms. Brown to read Alaska's Statutes            
 so she can see if there is anything else she would like to suggest            
 that might have even a greater impact than shifting from 0.10 to              
 0.08.  He is willing to address the problem, but does not want to             
 get caught up in tokenism.                                                    
 MS. BROWN says MADD believes drunk driving is a big picture, and it           
 takes many, many counter measures to combat; 0.08 is very                     
 significant part of the big picture.  It is not the whole picture,            
 and there are many other areas.                                               
 SENATOR ELLIS wants it noted that there is a written statement from           
 MADD in the bill packets entitled, "Responses to Editorial Comments           
 from Candy Lightner."  He recommends people read it.                          
 CHAIRMAN LEMAN thanks Ms. Brown and calls the next witness.                   
 Number 425                                                                    
 LYNDA ADAMS, with Alaskans for Drug-Free Youth, and Governor's                
 Advisory Board on Alcoholism and Drug Abuse, and Ketchikan Mayor's            
 Task Force on Substance Abuse, testifying from Ketchikan points out           
 that the legislature will soon receive copies of the new state plan           
 from the Division of Alcoholism and Drug Abuse.  That plan contains           
 as one of its' goals, reducing the adverse health and social                  
 consequences resulting from consumption of alcohol.  Part of that             
 goal entails lowering the allowable BAC from 0.10 to 0.08 for                 
 drivers 21 years of age or older.  Ms. Adams states that lowering             
 the BAC to 0.08 is also supported by Healthy People 2000 and                  
 Healthy Alaskans 2000.  Ms. Adams cites statistics relating to BAC            
 CHAIRMAN LEMAN thanks Ms. Adams for her testimony.  The chairman              
 states he would like to deal with HB 61 today, but if testimony               
 continues for a long period of time, the committee will lose a                
 quorum and not be able to move the bill out of committee.  The                
 Chairman asks Ms. Hensley from the Division of Motor Vehicles if              
 she would like to testify.                                                    
 Number 479                                                                    
 JUANITA HENSLEY, Chief, Driver Services, Division of Motor Vehicles           
 (DMV), Department of Public Safety (DPS) states about a year and a            
 half ago, the Alaska Supreme Court rendered a decision stating                
 Alaska courts could not use convictions in states with 0.08 BAC               
 laws as prior convictions in Alaska.  They must be treated as a               
 first time offender, even if their BAC was 0.30 for the prior                 
 offense.  As a consequence, as long as Alaska remains at a 0.10               
 BAC, prior convictions from any of the 0.08 BAC states, cannot be             
 used as prior conviction in court in Alaska.  DPS strongly supports           
 HB 61.  Federal 410 grants to the state for alcohol education and             
 enforcement will be cut off if Alaska does not pass a 0.08 BAC law,           
 we will lose that money.  HB 61 will also address the problem Ms.             
 Lightner had regarding the man who killed her daughter being                  
 prosecuted as a first-time offender in Wisconsin.                             
 Number 505                                                                    
 CHAIRMAN LEMAN asks Ms. Hensley if there is something the                     
 legislature can do to take prior offenses in 0.08 states into                 
 account during sentencing.                                                    
 MS. HENSLEY states she may refer that question to Ms. Knuth.                  
 However, the Alaska Supreme Court did find that Alaska's law was              
 not substantially similar to the laws of those states with 0.08 BAC           
 Number 512                                                                    
 SENATOR TAYLOR asks what happens when a state decides it wants to             
 lower its' BAC level to 0.06 or 0.05.  Would that then cause a                
 reaction across the U.S.; would every state then have to reduce to            
 that level to have a similar law?                                             
 MS. HENSLEY responds she believes that would be the case.  DMV is             
 not saying a person cannot go out and drink.  All we are saying is,           
 if you drink, be responsible and don't get behind the wheel of a              
 car.  Alaska has a 60% alcohol related fatality rate.  That is well           
 above the national average.                                                   
 Number 524                                                                    
 SENATOR TAYLOR asks Ms. Hensley if she knows of any studies showing           
 0.08 is preferable to 0.05 or any other BAC level.  How was 0.08              
 arrived at.                                                                   
 MS. HENSLEY replies studies done have shown that the more one                 
 drinks, the higher the chances are of having a fatal crash.  Ms.              
 Hensley says she believes the committee has charts showing                    
 information from studies in their bill packets.                               
 SENATOR TAYLOR asks if, in the future, we will improve things by              
 passing a 0.07 law; the year after that we'll go to 0.06.  He has             
 seen the process occur over the past ten years, and wants to know             
 if the legislature shouldn't consider the evidence for passing a              
 law stipulating a 0.06 BAC, or any other level.  Why should we stop           
 at 0.08?  Why not go all the way down to 0.05?                                
 MS. HENSLEY states commercial drivers have a BAC limit of 0.04.               
 Ms. Hensley believes that in the interest of public safety, all               
 drivers should have a BAC limit of 0.04.  Any time a life is lost             
 because of a drunk driveris terrible.  Of course morals cannot be             
 legislated, but we would certainly hope people are not getting                
 behind the wheel of a motor vehicle at even a 0.04 BAC.  Ms.                  
 Hensley states she agrees with Senator Taylor and thinks the                  
 allowable BAC level should be even lower than 0.08.                           
 SENATOR TAYLOR says he appreciates Ms. Hensley's comment.                     
 CHAIRMAN LEMAN says he does not agree with Ms. Hensley that morals            
 cannot be legislated.  The chairman asserts that every time a law             
 is passed, the legislature is establishing some level of morality.            
 People cannot be forced to act as we do, but we are establishing              
 some level of moral behavior.  The chairman thanks Ms. Hensley for            
 her testimony.  The chairman calls Ms. Knuth to testify.                      
 MARGOT KNUTH, Assistant Attorney General, Criminal Division,                  
 Department of Law states Ms. Hensley was correct in her statement             
 regarding the Alaska Supreme Court decision from about a year and             
 a half ago, saying, " a conviction from a 0.08 state is not                   
 substantially similar to Alaska's DWI offense."  It does not matter           
 what the person's BAC level was in that prior offense.  The person            
 could have a 0.20 BAC, but if they were from a 0.08 state, the                
 elements are not substantially similar; we cannot count it for                
 purposes of our aggravated sentencing structure for DWI.  That is             
 offensive.  Ms. Knuth says she felt Ms. Lightner's pain when                  
 hearing of Ms. Lightner's daughter's killer being treated as a                
 first time offender.  The answer from the Alaska Supreme Court was            
 for the legislature to go to 0.08 BAC.  The only other thing we do            
 is to have judges look at the reality of the situation and have               
 them impose and aggravated sentence, at the judges disrcretion.               
 However, that does not happen state-wide.  We would then be relying           
 on the judges perception of the situation.                                    
 MS. KNUTH would like to note that Alaska Supreme Court has decided            
 the margin of error on the intoximeter is at 0.01.  What this means           
 is technically, Alaska is at a 0.11 state.  If HB 61 is enacted,              
 Alaska will not be a 0.08 state, but will be a 0.09 state.  For               
 that reason, this legislation has become even more important to the           
 Department of Public Safety and the Department of Law.  It is                 
 possible to try to address that margin of error, but it would be              
 easier to adopt the 0.08 level being adopted nation-wide.  As there           
 has been a consistency in the 0.04 BAC for commercial drivers,                
 there has also been a consistency in 0.08 for the rest of the                 
 population.  She understands Senator Taylor's question, "Why 0.08",           
 and is not sure what the answer is.  She is sure it is the one                
 number states are turning to.                                                 
 CHAIRMAN LEMAN asks if the 0.01 margin of error on the intoximeter            
 will cause the supreme court to not take into account convictions             
 in other states.                                                              
 MS. KNUTH replies she would like to think they would not go that              
 SENATOR TAYLOR says it is no real shock to him...                             
 TAPE 94-17, SIDE B                                                            
 Number 593                                                                    
 ...when the new intoximeter came out, we (the judges) were very               
 carefully instructed that there was a margin of error to the                  
 intoximeter, and the benefit of the doubt was always to go to the             
 defendant.  The fact that the supreme court has now stated that               
 that is the case, does not change the calibration on one single               
 machine, and does not change the manner in which defendants are               
 prosecuted or convicted.                                                      
 MS. KNUTH states it does not change the calibration of the machine,           
 but it does change the manner of convicting people.  The courts               
 said not only is there the inherent "fudge-factor" that the machine           
 gave to the benefit of the defendant, but the state has to give               
 them a 0.01 benefit.  The state cannot prosecuted someone under the           
 0.10 BAC presumptive level if their BAC is less than 0.11.                    
 SENATOR TAYLOR says he watched prosecutions take place, he believes           
 they are still taking place, in which a defendant's BAC was well              
 under 0.10.                                                                   
 MS. KNUTH states that is on the basis of conduct.                             
 SENATOR TAYLOR states he does not think HB 61 will be a major hoop            
 in the process of prosecuting DWI's, with the evidence the state              
 currently has available to use.  He asks if the state is allowed to           
 use a previous conviction in a 0.08 state, if the conviction                  
 occured before the state changed from 0.10 to 0.08.                           
 MS. KNUTH responds she would have to look into that question.                 
 SENATOR TAYLOR asks if there is a way to draft the legislation that           
 would allow the state to retroactively pick up those convictions.             
 CHAIRMAN LEMAN asks Senator Taylor if he could look at that                   
 question and deal with it when it gets to the Senate Judiciary                
 Number 561                                                                    
 SENATOR ELLIS makes a motion to discharge HB 61 from the Senate               
 State Affairs Committee with individual recommendations.                      
 CHAIRMAN LEMAN, hearing no objection, orders HB 61 released from              
 committee with individual recommendations.                                    

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