Legislature(1993 - 1994)
03/16/1994 09:10 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 intoxicated. 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 studies. 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 levels. 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 levels. 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 laws. 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 far. 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 Committee. 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.