03/26/2001 01:15 PM House JUD
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 26, 2001
1:15 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 4
"An Act relating to offenses involving operating a motor
vehicle, aircraft, or watercraft while under the influence of an
alcoholic beverage or controlled substance; relating to implied
consent to take a chemical test; relating to registration of
motor vehicles; relating to presumptions arising from the amount
of alcohol in a person's breath or blood; and providing for an
effective date."
- HEARD AND HELD
HOUSE BILL NO. 3
"An Act relating to deposits to the Alaska permanent fund from
mineral lease rentals, royalties, royalty sale proceeds, net
profit shares under AS 38.05.180(f) and (g), federal mineral
revenue sharing payments received by the state from mineral
leases, and bonuses received by the state from mineral leases,
and limiting deposits from those sources to the 25 percent
required under art. IX, sec. 15, Constitution of the State of
Alaska; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 4
SHORT TITLE:OMNIBUS DRUNK DRIVING AMENDMENTS
SPONSOR(S): REPRESENTATIVE(S)ROKEBERG
Jrn-Date Jrn-Page Action
01/08/01 0024 (H) PREFILE RELEASED 12/29/00
01/08/01 0024 (H) READ THE FIRST TIME -
REFERRALS
01/08/01 0024 (H) TRA, JUD, FIN
02/22/01 (H) TRA AT 1:00 PM CAPITOL 17
02/22/01 (H) Heard & Held
MINUTE(TRA)
02/27/01 (H) TRA AT 1:00 PM CAPITOL 17
02/27/01 (H) Moved CSHB 4(TRA) Out of
Committee
MINUTE(TRA)
02/28/01 0470 (H) TRA RPT CS(TRA) NT 1DNP 2NR
2AM
02/28/01 0471 (H) DNP: SCALZI, NR: KAPSNER,
KOOKESH;
02/28/01 0471 (H) AM: MASEK, KOHRING
02/28/01 0471 (H) FN1: (ADM); FN2: (ADM)
02/28/01 0471 (H) FN3: (COR); FN4: (CRT)
02/28/01 0471 (H) FN5: (HSS); FN6: (HSS)
02/28/01 0472 (H) FN7: (HSS); FN8: (HSS)
02/28/01 0472 (H) FN9: (LAW); FN10: (DPS)
02/28/01 0472 (H) REFERRED TO JUDICIARY
02/28/01 (H) JUD AT 1:00 PM CAPITOL 120
02/28/01 (H) Heard & Held
MINUTE(JUD)
03/09/01 (H) JUD AT 1:00 PM CAPITOL 120
03/09/01 (H) Heard & Held
03/09/01 (H) MINUTE(JUD)
03/12/01 (H) JUD AT 2:30 PM CAPITOL 120
03/12/01 (H) Heard & Held
03/12/01 (H) MINUTE(JUD)
03/14/01 (H) JUD AT 2:15 PM CAPITOL 120
03/14/01 (H) Scheduled But Not Heard
03/16/01 (H) JUD AT 1:00 PM CAPITOL 120
03/16/01 (H) Heard & Held
MINUTE(JUD)
03/19/01 (H) JUD AT 1:00 PM CAPITOL 120
03/19/01 (H) Heard & Held
03/19/01 (H) MINUTE(JUD)
03/23/01 (H) JUD AT 1:00 PM CAPITOL 120
03/23/01 (H) Heard & Held
MINUTE(JUD)
03/26/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JANET SEITZ, Staff
to Representative Norman Rokeberg
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: Explained proposed amendments to CSHB
4(TRA) and answered questions.
MIKE FORD, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Answered questions about proposed
amendments to CSHB 4(TRA).
MARY MARSHBURN, Director
Division of Motor Vehicles (DMV)
Department of Administration
3300 B Fairbanks Street
Anchorage, Alaska 99503
POSITION STATEMENT: Answered questions regarding an amendment
to CSHB 4(TRA) [Amendment 5] proposed by the DMV.
ALVIA "STEVE" DUNNAGAN, Lieutenant
Division of Alaska State Troopers
Department of Public Safety
5700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Answered questions relating to proposed
amendments to CSHB 4(TRA).
ERNIE TURNER, Director
Division of Alcoholism & Drug Abuse
Department of Health & Social Services
PO Box 110607
Juneau, Alaska 99811-0607
POSITION STATEMENT: Answered questions relating to Amendment 11
to CSHB 4(TRA).
CANDACE BROWER, Program Coordinator/Legislative Liaison
Office of the Commissioner
Department of Corrections
431 North Franklin, Suite 203
Juneau, Alaska 99801
POSITION STATEMENT: Answered questions relating to Amendment 11
to CSHB 4(TRA).
HEATHER NOBREGA, Staff
to Representative Norman Rokeberg
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: As committee aide for the House Judiciary
Standing Committee, pointed out the need for a conforming
amendment to be included in Amendment 11 to CSHB 4(TRA).
LOREN JONES
CMH/API Replacement Project Director
Division of Mental Health & Developmental Disabilities
Department of Health & Social Services
PO Box 110620
Juneau, Alaska 99811-0620
POSITION STATEMENT: Testified on Amendment 12 to CSHB 4(TRA);
asked why the department's suggestions had been incorporated
into AS 47.37.130(b) instead of AS 47.37.140 and answered
questions relating to the amendment.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Answered questions relating to Amendment 12
to CSHB 4(TRA).
ACTION NARRATIVE
TAPE 01-41, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:15 p.m. Members present at the
call to order were Representatives Rokeberg, Ogan, Coghill,
Meyer, and Berkowitz. Representatives James and Kookesh arrived
as the meeting was in progress.
HB 4 - OMNIBUS DRUNK DRIVING AMENDMENTS
[Contains discussion of HB 172 as it relates to Amendment 7;
contains discussion of HB 179 as it relates to Amendment 12]
Number 0049
CHAIR ROKEBERG announced that the committee would take up
amendments to HOUSE BILL NO. 4, "An Act relating to offenses
involving operating a motor vehicle, aircraft, or watercraft
while under the influence of an alcoholic beverage or controlled
substance; relating to implied consent to take a chemical test;
relating to registration of motor vehicles; relating to
presumptions arising from the amount of alcohol in a person's
breath or blood; and providing for an effective date." [Before
the committee was CSHB 4(TRA).]
[Because of their length, some amendments discussed or adopted
during the meeting are found at the end of the minutes for HB 4.
Shorter amendments are included in the main text.]
Number 0115
CHAIR ROKEBERG made a motion to adopt Amendment 1 [22-
LS0046\S.5, Ford, 3/9/01], which read:
Page 21, line 14, following the first occurrence of
"vehicle":
Insert "or is registered as a co-owner under a
business name"
Number 0127
JANET SEITZ, Staff to Representative Norman Rokeberg, Alaska
State Legislature, explained that Amendment 1 addresses some
concerns of the Division of Motor Vehicles (DMV) regarding a
[registration of a] vehicle that might have a co-owner
registered under a business name.
Number 0147
REPRESENTATIVE OGAN asked whether [Amendment 1] allows the co-
owner who wasn't charged to [have the license reissued]; whether
this is to protect the co-owner's property right in the vehicle;
and whether it applies only to a business, not another co-owner
[such as a husband or wife].
MS. SEITZ indicated the intention is that the co-owner who was
convicted of drunk driving would not have access to the vehicle.
CHAIR ROKEBERG added that if a business [is the co-owner], there
will not be a forfeiture or revocation. He said although this
amendment is for a business, he believes there is a spousal
provision already in there.
Number 0244
REPRESENTATIVE BERKOWITZ asked for confirmation that there is a
provision for an innocent private owner as well.
Number 0260
MIKE FORD, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency,
responded:
If your question is, "Is there a provision ... that
allows an innocent person to come forward and address
their interests," yes. I don't think it's in the
bill; I think it's in law already. ... If you're on a
registration, and a provision that we're discussing
right now requires that a name be taken off, then
[you] could re-register the vehicle without that name.
That's what [we] are required to do under this bill.
Number 0299
REPRESENTATIVE BERKOWITZ asked whether there are any Fifth
Amendment issues about "taking" related to this.
MR. FORD said he didn't think so. He explained, "We're not
taking property. All we're doing is saying you can't register
the vehicle."
REPRESENTATIVE BERKOWITZ asked what the status of the vehicle
would be if a person couldn't register it, and how a person
would transfer such a vehicle.
MR. FORD said the owner could own a vehicle that is
unregistered, and could still "title" it or sell it, for
example.
CHAIR ROKEBERG asked whether there was any objection to
Amendment 1. There being no objection, Amendment 1 was adopted.
Number 0366
CHAIR ROKEBERG made a motion to adopt Amendment 2 [22-
LS0046\S.6, Ford, 3/9/01], which read:
Page 10, line 28, following "AS 28.35.030":
Insert "or 28.35.032"
Page 10, line 31, following "AS 28.35.030":
Insert "or 28.35.032"
Number 0379
MS. SEITZ explained that Amendment 2 increases the fees for the
reinstatement of a license when the license has been revoked for
refusal to submit to a "chemical test." In [CSHB 4(TRA)], the
reinstatement fees have been raised for DWI [driving while
intoxicated], she noted, but "we ... neglected to insert the
refusal language." Amendment 2 just inserts the statutory
reference to the "refusal citations."
CHAIR ROKEBERG asked whether there was any objection to
Amendment 2. There being no objection, Amendment 2 was adopted.
Number 0402
CHAIR ROKEBERG made a motion to adopt Amendment 3 [22-
LS0046\S.7, Ford, 3/21/01]. [Amendment 3 is provided at the end
of the minutes on HB 4.]
MS. SEITZ characterized Amendment 3 as being "partially a
technical correction." She explained, "When we phased in the
ten-year 'look-back' in [the House Transportation Standing
Committee], we neglected to reinsert the subsequent
misdemeanors." She said [Amendment 3] does that and raises the
fines for the subsequent misdemeanors.
Number 0450
REPRESENTATIVE BERKOWITZ requested confirmation that the fines
are being raised to $4,000 when there are two prior
[convictions], $5,000 when there are three, $6,000 when there
are four, and $7,000 when there are five.
CHAIR ROKEBERG affirmed that. He added that he would be
"monitoring" some of the fines and would be happy to take other
comments as the bill moves through [the process]. For example,
it might be desirable to give the judge more discretion, rather
than to have the minimum [sentences]. It wouldn't be addressed
at the current meeting, however.
REPRESENTATIVE BERKOWITZ emphasized that these are mandatory
minimum fines. He explained his concern: There needs to be
some way to have discretion by the courts to impose alternative
sentences.
CHAIR ROKEBERG concurred, saying he was open to making
modifications along those lines; he offered to work with
Representative Berkowitz on it. Chair Rokeberg indicated that
particular area hadn't been addressed previously.
Number 0571
REPRESENTATIVE COGHILL requested confirmation that even with the
mandatory minimum [fines], there are payment options that a
judge has [discretion in imposing].
CHAIR ROKEBERG replied, "I'd think so." He reiterated his
willingness to make modifications. He then pointed out that
[Amendment 3] reinserts something that was omitted in error.
CHAIR ROKEBERG asked whether there was any objection to
Amendment 3. There being no objection, Amendment 3 was adopted.
Number 0627
CHAIR ROKEBERG made a motion to adopt Amendment 4 [22-
LS0046\S.10, Ford, 3/23/01], which read:
Page 7, line 27:
Delete "The"
Insert "Except as provided under AS
28.35.030(n)(3) and 28.35.032(p)(3), the [THE]"
MS. SEITZ explained that Amendment 4 is a technical amendment
that fixes a conflict between the bill and the existing law
regarding minimum license revocation periods.
Number 0677
MR. FORD provided a further explanation:
There was a conflict between a permanent revocation
provision for felony offenders and a provision under
which the court is required to revoke your license for
certain specified periods. So, with this amendment,
you make it clear that the felony provisions would
supersede, and your permanent revocation would take
effect. ... This was our [the drafters'] mistake.
CHAIR ROKEBERG, hearing no objections to Amendment 4, announced
that it was adopted.
Number 0726
CHAIR ROKEBERG made a motion to adopt Amendment 5 [22-
LS0046\S.12, Ford, 3/23/01], which read:
Page 7, line 28:
Delete "not less than 45"
Insert "not more than 90"
Page 22, line 16:
Delete "shall"
Insert "may"
Page 23, following line 3:
Insert a new subsection to read:
"(s) For purposes of this section, the director
of the division within the department responsible for
administration of this section or a person designated
by the director may request and receive criminal
justice information available under AS 12.62. In this
subsection, "criminal justice information" has the
meaning given in AS 12.62.900."
Number 0728
MS. SEITZ addressed Amendment 5 in three sections. The first
[relating to page 7, line 28] increases the period of revocation
of a license from not less than 45 days to not more than 90 days
when the person has not been previously convicted and the court
has suspended the [imposition] of the sentence. Ms. Seitz
explained that this was done in response to a request by the DMV
because of a concern that the timelines were too short; the "not
more than 90" [days] works better with the DMV's internal
processing.
MS. SEITZ addressed the second section [relating to page 22,
line 16]. She explained that the change from "shall" to "may"
gives the division the discretion to reinstate a person's
driver's license that has been permanently revoked.
MS. SEITZ turned attention to the third section [relating to
page 23, following line 3]. She explained that when the DMV was
moved from the Department of Public Safety into the Department
of Administration, it lost its classification as a criminal
justice information agency; thus it has not been able to access
the APSIN [Alaska Public Safety Information Network] system.
This change gives limited personnel [the director or a person
designated by the director] the ability to access the APSIN
system for criminal information. If a person has a long-time
revocation, for example, and the bill says a person must meet
certain criteria - including that the person hasn't had another
criminal offense - right now the division couldn't check to see
whether that other criminal offense existed. This [portion of
Amendment 5] gives the DMV the ability to go into the APSIN
system and check.
Number 0850
REPRESENTATIVE KOOKESH returned attention to the DMV's
discretion regarding whether to restore a permanently revoked
license. He requested an explanation, noting that the DMV is
not a court. He asked how that agency could have discretion,
one way or the other, to give a license.
MR. FORD explained:
What we're talking about here is the provision under
which the department could restore your license. The
court's going to revoke your license, but the
department has some ability to ... review the
revocation. If you meet the criteria that ... have
been established, they could give you your license
back.
And the change that we're talking about here is
changing it from a "shall restore" to "may restore".
And although that sounds like some discretion, I
believe the reason ... the department would like to do
that is because the license may be revoked under
another provision of law, ... or there may be some
other criteria that they want to apply. And so, I
assume that's why they want to go to "may". That's
the way it's typically written, is that they may
restore it, rather than to require them to restore it.
Number 0942
REPRESENTATIVE BERKOWITZ explained that his problem with the
first section [of Amendment 5] is that AS 28.35.030(b)(1)(A)(i)
says, basically, that there is a "window" from .08 to .10 [blood
alcohol concentration] in which there is a different sentencing
scheme. He said he objects to that notion and doesn't think
[the legislature] should make an exception for it; he is
concerned with it as it relates to this section. He explained:
It seems to me that the courts ought to at least have
discretion to treat those offenders who fall in that
window similarly to those who ... are above .10 [blood
alcohol concentration]. ... They should have that
discretion, instead of us crimping what their
authority is in that area. Oftentimes, ... someone
who has a .08 might also have another substance
involved, and there's just reasons why you want the
courts to have the discretion to do each case
individually.
... I think I have an amendment on this, later on, ...
but I would just point out that that first section in
Amendment 5 deviates from ... what exists already. It
adds ... more statute than is ... simply required for
going from a .10 to .08 [blood alcohol concentration].
CHAIR ROKEBERG suggested Representative Berkowitz was making an
argument about the whole section. He said this is a
recommendation or request from the DMV to make it more workable.
REPRESENTATIVE BERKOWITZ specified, "I would say that it should
be not less than 90 days."
CHAIR ROKEBERG inquired whether that was instead of "not more
than 90 days." He asked Mr. Ford to address the issue.
Number 1086
MR. FORD noted that the language [in CSHB 4(TRA), beginning at
page 7, line 31] says "not been previously convicted"; it would
be a person's first offense. He said it gives the courts some
leeway to look at each case individually. If one person's
offense were slightly less serious than another's, the court
could impose a shorter period of revocation.
REPRESENTATIVE BERKOWITZ asked, however, whether the court
doesn't already have discretion under the current statutory
scheme.
MR. FORD replied that it depends on which type of issue is being
talked about. In some cases, there are mandatory minimums.
REPRESENTATIVE BERKOWITZ asked: In instances in which the
courts have discretion, don't they have the discretion to
distinguish between greater and lesser offenses?
MR. FORD responded, "Only on certain issues. If you look at
existing law under this section, it says the minimum [periods of
revocation] are ... not less than 90 days, so ... there's no
discretion there."
REPRESENTATIVE BERKOWITZ pointed out that it could be greater
than 90 days.
MR. FORD concurred, but added that he was talking about the
mandatory minimums. In further reply to Representative
Berkowitz, he agreed that it is a mandatory maximum [of not more
than 90 days] under this paragraph, but said on this particular
example, he thinks the department is trying to allow discretion
up to 90 days, as opposed to saying "at least 90 days".
CHAIR ROKEBERG called an at-ease at 1:33 p.m.; he called the
meeting back to order at 1:37 p.m. He called another at-ease at
1:38 p.m. in order to obtain a quorum; he called the meeting
back to order at 1:39 p.m.
Number 1266
REPRESENTATIVE BERKOWITZ pointed out that in [CSHB 4(TRA)], 45
[days] is the floor "for ones that don't qualify on first
offense," so there is a lower floor already. This [first
section of Amendment 5] would put a ceiling on it, so that the
court couldn't exceed a 90-day suspension. To his understanding
[of the current statutes], by contrast, a suspension for a first
offense could go up to a year or five years; there is an
existing upward limit.
REPRESENTATIVE BERKOWITZ said he could understand that maybe for
fiscal reasons [the DMV] would want to limit the number of
people, but most "first-timers" would land within that [45-to-
90-day] range. He said it seems appropriate, in those instances
in which someone doesn't land in that range, that there would be
the opportunity to exceed a 90-day cap.
CHAIR ROKEBERG noted that Ms. Marshburn of the DMV was online
and could clarify why she had made that recommendation. He
referred to the section of [Amendment 5] amending page 7, line
28, and asked her to speak to that.
Number 1340
MARY MARSHBURN, Director, Division of Motor Vehicles (DMV),
Department of Administration, speaking via teleconference, said
she could try. She explained that Section 12 [of CSHB 4(TRA)],
page 7, line 28, works in concert with Section 15, page 9, and
with Section 27, page 16. She stated:
What it did, as we saw it, was set up a ... two-tiered
revocation period for a first offender. The
department, in an administrative revocation, revokes
for 90 days on a first offense, and the individual is
eligible for a limited license for the last 60 days of
that revocation.
This set up two periods if the breath test was between
.08 and .10 [blood alcohol concentration]. If the
court suspended the execution of sentence, it called
for a "not less than 45 days", and we interpret that
as probably being the 45 days, with a limited license
for the last 30 days of that, as specified in Section
15 of the bill. And that gave a 15-day revocation
period.
If DMV's administrative revocation for 90 days has
already taken place - and in all likelihood it would -
the individual would be on one ... administrative
revocation track with DMV and, potentially, an
entirely separate revocation track with the court.
We can envision the individual approaching DMV for a
limited license 15 days into their revocation period,
or 15 days into their 45-day revocation period, and
DMV would be unable to do that, because ... court
action likely would not have taken place.
If the court did not suspend imposition of sentence,
then the revocation period was 90 days - again, if a
breath test was between .08 and .10 [blood alcohol
concentration]. And it was that two-tiered or two-
level system that we saw as confusing.
If you ... then look at Section 27 on page 16, the
penalties, if you were, ... - for a first-time
offender, and to qualify for the imposition of
sentence - included [a] probationary period of a year;
ignition interlock; a $500 fine, I think, and
community service.
The 90-day revocation period did not include the
ignition interlock or the one-year probation period.
The other thing the division could see was [that] a
first offender, looking at this two levels and
choosing to take the 90-day revocation - because they
would not have to serve the year's probation, would
not have to have the interlock - they would have to
spend three days in jail.
And I don't know, Mr. Chairman, whether that
[explanation] helped or hindered.
Number 1543
REPRESENTATIVE BERKOWITZ asked how this setup would differ from
the current one. He stated his understanding that the court's
and the DMV's suspensions usually run concurrently.
MS. MARSHBURN agreed, then explained:
At this point, DMV would be revoking for 90 days,
under an administrative revocation, and that
revocation would start on the eighth day following
delivery of the notice and order. At that point, the
person may have been arraigned, but likely would not
have gone to court ... under most schemes. At the
time that the individual gets to court and is
sentenced, they would likely be well into ... the 45-
day revocation period. Even if the court suspended
the imposition of sentence, the minimums would have
been met, at least administratively.
REPRESENTATIVE BERKOWITZ responded:
But there's no reason why the court couldn't impose
its sentence on the revocation portion to run
concurrently, even if it's running retroactively. ...
Say, you're 60 days out, ... and the individual's
already served the 45[-day] revocation period. The
court could say, "We're suspending you for 45 days,
and congratulations, you've already finished those ...
45 days."
MS. MARSHBURN said that is correct, if the court is aware that
the DMV "has suspended for that period of time already." She
agreed that both suspensions would run concurrently.
Number 1630
REPRESENTATIVE BERKOWITZ said:
But in the instance where the court said, "No, we want
you to serve a 200-day sentence" - and we're 60 days
out and you've already served the 45 [days] and you
... have your license back for 15 days - now you've
got to serve another 155 days. Is that what the
problem is, why you want a 90-day cap?
MS. MARSHBURN affirmed that.
REPRESENTATIVE BERKOWITZ asked what the logistics problem is.
He restated that the person would have his/her license revoked
by DMV and would get it back through DMV; subsequently, the
court would revoke it again. He asked whether Ms. Marshburn
anticipates this being a frequent problem.
MS. MARSHBURN replied that with the .08 and .10 [blood alcohol
concentrations], she doesn't know. "We just anticipate the
problem," she added.
Number 1675
REPRESENTATIVE BERKOWITZ asked: Under the current statute, for
first-time DWI [driving while intoxicated] offenders, roughly
what percentage receive the minimum 90-day revocation?
MS. MARSHBURN answered that it is an overwhelming majority.
Number 1701
REPRESENTATIVE BERKOWITZ, in response to Chair Rokeberg,
affirmed that he maintained his objection. He explained:
My objection to section 1 [of Amendment 5] ... is that
what you set up is a mandatory maximum, that the
court, even if it looks at the totality of the
circumstances involved in an offense, couldn't impose
a revocation of more than 90 days. And I think ...
that's an unfair restriction on the court's
discretion. I think there are instances that would
require more than 90 days - now, not many, but in
those instances where it's required, ... we set an
artificial top; it doesn't always serve what I think
is a just result.
Number 1740
REPRESENTATIVE JAMES asked what those circumstances would be.
REPRESENTATIVE BERKOWITZ answered:
Under this scenario, you'd need someone who was a
first-time offender who somehow fit in that window.
There's a .08-to-.10 [blood alcohol concentration
window], and that's all you need to be in the first-
time-offender window, right? So, say you had someone
who was a .08 who had, for example, driven down the
road, banged into a bunch of cars, ... had a history
of ... driving offenses - not DWIs - I mean, there
just might be a reason to load up a little bit more on
the revocation period. That would be one scenario.
... I'm sure there's folks around who could come up
with others, but ... there's reasons why you might
want to have that [discretion] in your hip pocket.
Number 1780
REPRESENTATIVE COGHILL said it is still imposing a minimum, but
the minimum just happens to be not more than 90 days. It could
be anything up to that point.
REPRESENTATIVE BERKOWITZ responded that it could be zero to 90
days. Currently, by contrast, the minimum is 90 days. There is
an inequity between someone who has a .10 [blood alcohol
concentration] and gets a 90-day revocation and someone who has
a .08 [blood alcohol concentration] but has done "some
horrendous things" and would get no more than 90 [days'
revocation].
Number 1830
REPRESENTATIVE JAMES said it sounds as if, in Representative
Berkowitz's example, the person would be "a bad guy" regardless
of the blood alcohol concentration. She asked whether there
aren't some penalties for that, too.
CHAIR ROKEBERG replied that there [may be] other criminal
charges.
REPRESENTATIVE BERKOWITZ said it would factor in to different
parts of the sentencing, such as the jail time. He continued:
Realistically, first-time offenders don't normally get
more than three days. But you might want to have ...
more than a 90-day [revocation] period, for example,
to make sure that someone ... went through their
alcohol [rehabilitation]. Or a lot of times, people
would want to get off so they could go fishing and
things like that. You might want to have something so
that ... there was some real punishment. ... People
would offend, and then they'd be fishing for 45 days,
and there wouldn't be any real penalty attached to it.
CHAIR ROKEBERG said he would have no objection to deleting the
provisions on lines 1-3 [of Amendment 5],
Number 1899
REPRESENTATIVE BERKOWITZ made a motion to amend Amendment 5 by
deleting lines 1-3 [of the amendment], which read:
Page 7, line 28:
Delete "not less than 45"
Insert "not more than 90"
CHAIR ROKEBERG commented:
We need to make sure we're doing the right thing.
We'll work with DMV to make sure that this is
clarified, because if we go back to the default
language here of not less than 45 [days], then that
will, presumably, allow the judge to give less than 90
days, but also it [is] taking into account your
concerns by going up to a year.
Number 1941
REPRESENTATIVE COGHILL asked whether that impacts the bill
elsewhere.
CHAIR ROKEBERG said he didn't think so. He said it would be
continued as a point of examination, however, before the
legislation goes to the House floor, in order to make sure it
has been clarified completely.
CHAIR ROKEBERG asked whether there was any objection to the
amendment to Amendment 5. There being no objection, the
amendment to Amendment 5 was adopted.
CHAIR ROKEBERG asked whether there was any objection to
Amendment 5, as amended. There being no objection, Amendment 5,
as amended, was adopted.
Number 1970
CHAIR ROKEBERG made a motion to adopt Amendment 6 [22-
LS0046\S.13, Ford, 3/23/01]. [Amendment 6 is provided at the
end of the minutes on HB 4.]
MS. SEITZ explained that Amendment 6 is to "make sure that we're
capturing only the individuals in your diversion program and at
least .08 [blood alcohol concentration] but less than .10, so
that .10 was not included."
CHAIR ROKEBERG asked Mr. Ford, "So more than .10 equals .0999."
Number 2000
MR. FORD responded:
It's just a question of where you draw the line. And
we understood, incorrectly, that you wanted to include
the .10 class. But if you do not wish to do that, you
need to adopt this amendment and thereby [exclude] the
.10 class from your diversionary program.
CHAIR ROKEBERG said this considerably narrows the number of
people who would be eligible for the diversion program.
Number 2022
REPRESENTATIVE BERKOWITZ expressed his understanding that court
cases indicate there is an error rate that has to be factored in
to "intoximeter readings" of up to .01.
MR. FORD replied that the legislature had adopted a statute that
says whatever the machine results are, even though there is an
inherent error factor, it doesn't matter.
CHAIR ROKEBERG stated his belief that newer machines are much
more accurate.
REPRESENTATIVE OGAN said that is assuming they have the newer
ones.
REPRESENTATIVE BERKOWITZ remarked that he thinks this amendment
clarifies it, but given the error rate and trying to draw this
"window," it is a "full-employment program for lawyers."
Number 2117
CHAIR ROKEBERG asked whether there was any objection to
Amendment 6. There being no objection, Amendment 6 was adopted.
Number 2125
CHAIR ROKEBERG made a motion to adopt Amendment 7 [22-
LS0046\S.15, Ford, 3/23/01], which read:
Page 16, line 9, following "shall":
Insert ", except as provided under (s) of this
section,"
Page 20, line 19, following "shall":
Insert ", except as provided under (s) of this
section,"
Page 23, following line 3:
Insert a new subsection to read:
"(s) The court may suspend execution of a
portion of the mandatory minimum sentence required
under (b)(1) or (n)(1) of this section if the court
determines that the person has successfully completed
a therapeutic court program."
Number 2126
MS. SEITZ explained that Amendment 7 would allow for the
suspension of a portion of the mandatory sentences for a person
who had successfully completed a therapeutic [court] program.
CHAIR ROKEBERG noted that during a hearing on HB 172, there was
discussion about the existing therapeutic district court
operations of Judge Wanamaker in Anchorage, and about the
endeavor of Judge Froehlich to start a similar project in
Juneau. He said because HB 172 focuses on third-offense felony-
conviction DWIs, the intention here is to give a statutory right
of a district court judge to be flexible within that scheme, "if
he's within a therapeutic [court] program."
MS. SEITZ affirmed that. She added, "It says the court may
suspend a portion of the mandatory minimums."
CHAIR ROKEBERG clarified that [Amendment 7] would ensure that
the existing district-court-level operations can continue and
have some statutory authority to be flexible.
CHAIR ROKEBERG asked whether there was any objection to
Amendment 7. There being no objection, Amendment 7 was adopted.
Number 2195
CHAIR ROKEBERG made a motion to adopt Amendment 8 [22-
LS0046\S.17, Ford, 3/22/01], which read:
Page 22, line 20, following "responsibility":
Insert "and proof that the person has paid all
court-ordered restitution"
[Amendment 8 was later withdrawn.]
MS. SEITZ explained:
Amendment 8 adds proof that a person has paid all the
court-ordered restitution before their driver's
license can be reinstated. ... Again, we're going back
to where the license has been permanently revoked.
Right now, the bill requires that a person has not
been convicted of a criminal offense and provides
proof of financial responsibility, and this just adds
that they've paid all their court-ordered restitution.
Number 2226
REPRESENTATIVE BERKOWITZ asked whether there is a maximum amount
of restitution that can be ordered.
MR. FORD answered that there is a limit on class A misdemeanors
within which he believes the court would have to fall, since
that is the maximum to which someone can be sentenced. He
concluded, "So, yes, I think there would be - $5,000."
CHAIR ROKEBERG asked, "What about a felony?"
MR. FORD replied $50,000, except for certain felonies. In
response to another question, he said there is a statutory limit
on a statutory penalty for the offense: one year and $5,000.
In further response, he agreed that in some instances, [the
court] requires restitution.
CHAIR ROKEBERG read from Amendment 8, "proof that the person has
paid all court-ordered restitution". He said he assumes that
would be based on an "actual-value-type restitution order of the
court, not a fine or cap on ... the fine."
MR. FORD said he didn't know, but could find out.
Number 2301
REPRESENTATIVE BERKOWITZ pointed out that there is a distinction
between a fine and restitution.
MR. FORD added that someone could have serious injuries, too.
CHAIR ROKEBERG said that is why there is civil court. On the
other hand, the court seemingly could order the payment of
medical costs and so forth. He asked whether that is true.
MR. FORD answered that he himself was interpreting this to be
acting within the limits of the class A misdemeanor. "You're
raising an interesting question," he added.
REPRESENTATIVE BERKOWITZ indicated he hadn't practiced law in
this area for ten years. However, in his experience, much of
the restitution that was ordered was for people doing things
like running over street signs.
MR. FORD commented, "I think the court would have serious
problems if they decided to undertake civil remedies in the
criminal process - complete civil remedies."
CHAIR ROKEBERG remarked that it is opening up Pandora's box. He
noted that there had been testimony before the committee about
[this issue]. He asked Ms. Seitz to comment.
Number 2350
MS. SEITZ said it was a suggestion from someone in Fairbanks who
felt that before a person could get his/her license reinstated,
all court-ordered restitution should be paid.
Number 2367
CHAIR ROKEBERG withdrew Amendment 8. He asked Mr. Ford to get
back to the committee about the issue. He remarked that
conceptually he thinks it is a good idea, but that he wanted to
ensure that the committee understood the legal ramifications
before adopting it.
Number 2386
CHAIR ROKEBERG made a motion to adopt Amendment 9 [22-
LS0046\S.18, Ford, 3/23/01], which read:
Page 11, line 2:
Delete "a new subsection"
Insert "new subsections"
Page 11, following line 11:
Insert a new subsection to read:
"(d) It is an affirmative defense to a violation
of (c) of this section that the conduct was justified
by necessity."
Number 2392
MS. SEITZ explained that Section 18 of the bill adds some
language to the current "enabler statute" that indicates
"certain things could happen" to a person who knowingly allows
someone who is not validly licensed, due to a DWI conviction, to
drive his/her car. Amendment 9 adds an affirmative defense that
the conduct was justified by necessity; it was drafted following
some suggestions by the [Alaska] Network on Domestic Violence
[and Sexual Assault] "and some discussion with those groups who
were afraid that someone might be under a threat if they didn't
let someone use the vehicle."
REPRESENTATIVE BERKOWITZ said it seems the "necessity defense"
is always available as an affirmative defense. He suggested:
Maybe we ought to be looking at a different standard
than affirmative defense, which requires the defendant
to put on some proof, and something relating to
domestic violence might be one of those instances
where we ... did something besides an affirmative
defense.
MR. FORD concurred that [the defense] is always available; this
makes it clear to the court that it is available in this case.
He added, "There [are], of course, statutory provisions to use
this defense. It's up to the committee to decide if they wanted
to ... change the nature of the defense."
Number 2445
CHAIR ROKEBERG stated his preference to leave it in, to give
guidance. He asked Representative Berkowitz about his point of
having to make an affirmative defense under those types of fact
patterns.
REPRESENTATIVE BERKOWITZ clarified, "What I would have in mind
would be something like 'it's a bar to prosecution that the
conduct was justified by necessity,' which ... would make the
state prove that it wasn't."
CHAIR ROKEBERG asked whether that wouldn't come up during
discovery or when the prosecutor reviewed the prosecution under
the statute.
REPRESENTATIVE BERKOWITZ replied, "Not in misdemeanors. Not
until they get a lot more money and a lot more experience
[prosecuting]." He added, "Essentially, what you're telling law
enforcement is, 'If you're going to pursue a case under this,
you need to look to see whether there was an instance of
domestic violence that precipitated the offense.'"
CHAIR ROKEBERG said that is why [Amendment 9] is being inserted.
CHAIR ROKEBERG asked whether there was any objection to
Amendment 9. There being no objection, Amendment 9 was adopted.
[This motion is not found on the tape but was recorded in the
log notes.]
TAPE 01-41, SIDE B
Number 2511
CHAIR ROKEBERG made a motion to adopt Amendment 10 [22-
LS0046\S.19, Ford, 3/23/01], which read:
Page 20, line 11, following "hospital":
Insert ", unless the person requires medical
treatment"
MS. SEITZ explained that currently the bill says an appropriate
place for treatment does not mean a residential treatment
facility or a hospital. There was some concern that this might
be too limiting. Therefore, the language "unless the person
requires medical treatment" is being proposed.
CHAIR ROKEBERG asked whether there was any objection to
Amendment 10. There being no objection, Amendment 10 was
adopted.
Number 2466
REPRESENTATIVE OGAN returned attention to Amendment 9 and
Section 18 of the bill, page 11. He paraphrased from Section
18, which read in part:
(c) A person who violates (b) of this section by
knowingly allowing a person who is not validly
licensed as a result of a conviction under AS
28.35.030(n) to drive a motor vehicle is, upon
conviction, guilty of a class A misdemeanor, and the
court shall
(1) revoke the person's driver's license,
privilege to drive, or privilege to obtain a license
for 30 days;
(2) impose a minimum fine of $1,000; and
(3) if the person has been previously
convicted under this section, require the person to
complete an alcoholism program required under AS
28.35.030(h).
REPRESENTATIVE OGAN asked, "What if the person is not an
alcoholic?"
CHAIR ROKEBERG said it is a requirement [relating to] the
person's awareness, a further punitive action to educate the
person about the reasons to refrain from giving the car to
somebody.
REPRESENTATIVE OGAN said it seems to treat the person as if he
or she were an alcoholic. He asked whether the alcoholism
program under AS 28.35.030(h) also includes "enablers" and
people who aren't alcoholics. Perhaps the person doesn't drink,
he pointed out, and is just ignorant. He asked why that
language exists.
Number 2400
MR. FORD responded that the program described here is one of
screening and evaluation. Even if the person wasn't an
alcoholic, the program may raise that person's awareness of how
alcoholism affects people's lives.
REPRESENTATIVE OGAN pointed out that there is no [discretion]
because it says "the court shall" require the person to attend
an alcoholism program.
MR. FORD suggested that the screening and perhaps an evaluation
would justify the provision.
REPRESENTATIVE OGAN asked why [the legislature] is wasting
resources by sending people who might be stupid or ignorant [to
alcoholism treatment]. He acknowledged that it is stupid to let
someone who is drunk take one's car, but he again asked why
there was a mandate to go to an alcoholism program if a person
had made a bad error in judgment. He proposed that perhaps
there would be another reason such as use of drugs.
CHAIR ROKEBERG suggested that Representative Ogan could come up
with an amendment or that it could be addressed under discussion
of the bill [later].
Number 2322
CHAIR ROKEBERG made a motion to adopt Amendment 11 [22-
LS0046\S.16, Ford, 3/23/01]. [Amendment 11 is provided at the
end of the minutes on HB 4.]
Number 2314
MS. SEITZ pointed out that the first four lines of Amendment 11
were contained in Amendment 4 and, therefore, had already been
adopted. Those first four lines read:
Page 7, line 27:
Delete "The"
Insert "Except as provided under AS
28.35.030(n)(3) and 28.35.032(p)(3), the [THE]"
Number 2300
CHAIR ROKEBERG offered a technical correction to delete lines 1
through 4 of Amendment 11.
MS. SEITZ explained that the next section [relating to page 18,
lines 5-8 of the bill] applies to the misdemeanor portion of the
statute that includes watercraft and what may be forfeited, and
it makes forfeiture mandatory if the person has previously been
convicted two or more times.
MS. SEITZ addressed the next section of Amendment 11. Starting
on line 22 [relating to page 25, following line 20 of the bill],
she noted that a new bill section applies to a refusal to submit
to a chemical test.
Number 2250
MR. FORD explained that this just brings refusal [of a chemical
breath test] in line with the penalties under the DWI
provisions. He continued explaining Amendment 11, saying there
are also changes that reflect the intent of the committee to
mandatorily forfeit the vehicle upon a third conviction.
Furthermore, on page 7 [relating to page 28, following line 6,
of the bill], there is a change to the municipal impoundment and
forfeiture law, which allows them to impose an administrative
fee. He concluded that except for forfeiture, [Amendment 11] is
primarily a conforming amendment.
MS. SEITZ pointed out that on page 7, line 11 [of the amendment,
relating to page 27, lines 27-31, of the bill], Chair Rokeberg
had wanted to have it say "shall" instead of "may".
[Thus lines 10-13 of the amendment would read in part, "the
state shall move the court to order the forfeiture of the motor
vehicle [,] or aircraft involved in the commission of the
offense if the convicted person has been previously convicted
twice".]
Number 2140
REPRESENTATIVE BERKOWITZ objected, on a policy basis, to
changing "may" to "shall". He offered an example in which
someone has totally smashed up a vehicle. Essentially, the
state would be taking the vehicle, and the responsibility for
it, from the defendant's hands. The state would assume a cost
that might not be appropriate.
Number 2109
MR. FORD said it is a complicated provision, then suggested the
sponsor would not want to make that change. The provision being
amended applies to all offenses, he explained, not just the
felony offenses or a third or subsequent offense. He concluded:
So, I think you want to leave that as "may", and your
felony provisions, where you want mandatory
forfeiture, are covered under other provisions of law.
... If you change this to "shall", you are sort of
back where you started, which is, it's a mandatory
forfeiture for all offenses under [AS 28.35.]030 and
[AS 28.35.]032, which is, I think, where you're not
trying to go.
Number 2035
MR. FORD explained that there are mandatory forfeiture
provisions; this changes is a slightly different mandatory
forfeiture provision that is only triggered on the third or
subsequent offense.
CHAIR ROKEBERG noted that [Amendment 11] takes the "shall" out
[of the bill] and puts the "may" back in.
MR. FORD emphasized, "For all offenses."
CHAIR ROKEBERG concurred with retaining "may" on line 11 [of the
amendment].
REPRESENTATIVE BERKOWITZ asked whether there is a change from
"shall" to "may" all the way through the amendment.
MR. FORD responded:
The easiest way to think of this is that under current
law, the court is allowed to forfeit your vehicle;
it's not required to. With this amendment [Amendment
11], if you had two prior convictions, then ... the
court's going to be required to forfeit your vehicle.
So only for third or subsequent convictions will you
trigger forfeiture.
CHAIR ROKEBERG asked whether there was another provision
regarding the second offense in the amendments.
MS. SEITZ indicated it was in a later amendment.
CHAIR ROKEBERG explained that Anchorage and Fairbanks, at the
second offense, have mandatory forfeiture. He said another
provision allows the charging of a fee; he noted that testimony
from the municipalities that are doing this had indicated it
would help with their costs.
Number 1895
REPRESENTATIVE MEYER asked, "Why aren't we being similar to
Fairbanks and Anchorage in making that after a second offense?"
CHAIR ROKEBERG answered that there have been criticisms and
comments from the Department of Law and the Department of Public
Safety about some practical applications and the costs of doing
it, in certain areas of the state. He said an [unspecified]
amendment speaks to that in terms of what can be done at the
second[-offense] level. He added, "We're ... recommending a
forfeiture, but we also can have it impounded in place, and ...
you can [chain] it up, on the property of the individual, so we
don't incur the liability of storage and so forth - immobilizing
the vehicle."
Number 1844
REPRESENTATIVE BERKOWITZ asked whether there is a provision for
a state administrative fee to be collected.
MR. FORD said he believes there is.
REPRESENTATIVE BERKOWITZ asked, "So, if we wind up confiscating
someone's wreck, we can charge them for the haul and the
disposal fees?"
MR. FORD answered that he believes the state imposes those fees
as a matter of course.
Number 1810
CHAIR ROKEBERG addressed Mr. Ford, saying Representative
Berkowitz brings up a good point that the troopers don't want to
be confiscating wrecked cars except for evidence. He asked,
"Where are we on that?" He then asked Lieutenant Dunnagan what
is currently done when there is a vehicle that has been damaged
severely.
Number 1798
ALVIA "STEVE" DUNNAGAN, Lieutenant, Division of Alaska State
Troopers, Department of Public Safety, responded:
There would actually be several different scenarios
you could look at. If the vehicle was wrecked and ...
there [were] no injuries involved in it, and it was
not a traffic hazard, the vehicle could actually be
left there because of the way the state law reads,
depending on where it would be sitting on state
property.
If it was involved in an accident and still in the
roadway, ... then it would be impounded if the owner
did not have the capability to remove it right away.
If it was involved in an accident and there [were]
injuries caused to other people or a fatality, the
vehicle would be impounded, most likely, to a state
trooper office, ... where it would be held as evidence
until search warrants could be obtained and things
like that, for the investigation. Those particular
vehicles, right now, are paid for out of Department of
Public Safety funds. Once we seize something as
evidence, it becomes our property and our liability.
Number 1685
CHAIR ROKEBERG suggested that the committee needs to be aware of
the disposition if the vehicle is not impounded for purposes of
evidence.
LIEUTENANT DUNNAGAN specified, "If it wasn't impounded for
purposes of evidence, the costs would be borne by the owner."
CHAIR ROKEBERG said there is a practical problem here of
mandating the courts to forfeit an automobile that [has been]
wrecked, which might inadvertently let the miscreant "off the
hook" from claiming the car.
LIEUTENANT DUNNAGAN agreed that could be true.
CHAIR ROKEBERG suggested the committee should follow up on that
and restated that Representative Berkowitz had made a good
point. He asked Mr. Ford whether he had "run down anything" on
the state's ability in that regard.
MR. FORD said he couldn't find the provision; he offered to
check on it and get back to Chair Rokeberg.
Number 1667
REPRESENTATIVE BERKOWITZ turned attention to page 4, lines 2-3
[of Amendment 11], which read in part:
The cost of treatment required to be paid to the state
under this subsection may not exceed $2,000.
He said it would seem that [the legislature] should allow for
the possibility that someone could afford more than $2,000. He
noted that there is a provision in there for a waiver of costs
if the individual is indigent. He inquired about the reason for
putting a cap on it.
CHAIR ROKEBERG answered that it raises the cap. He referred to
previous testimony and stated his understanding that currently
there is a requirement that people in the programs pay for their
own treatment; if they cannot pay and the treatment is paid for
by the state, "then we're looking at some recovery costs, but
we're trying to put a cap on that." He added, "I agree with
you, what you're saying."
Number 1610
REPRESENTATIVE BERKOWITZ proposed eliminating the whole section
that says a person will only pay up to $2,000, and then saying
it will be done on a sliding scale, based on the ability to pay.
That would ensure that people who cannot pay don't have to pay,
but that those who can, would.
CHAIR ROKEBERG noted that there had been discussion of use of
the permanent fund [dividend] (PFD), which is another policy
call. He said:
How about putting the treatment elements and other
costs that related to drunken driving into the ... PFD
pool and giving it a priority there? But the bill
doesn't speak to that currently. It allows the court
to impose the fine, the equivalency of it.
REPRESENTATIVE MEYER said as he reads it, a millionaire would
still have to pay only $2,000.
CHAIR ROKEBERG said that isn't the case. He asked Mr. Turner to
address the issue.
Number 1548
ERNIE TURNER, Director, Division of Alcoholism & Drug Abuse,
Department of Health & Social Services, stated his understanding
that it only applies if a person is incarcerated.
CANDACE BROWER, Program Coordinator/Legislative Liaison, Office
of the Commissioner, Department of Corrections, in response to
Chair Rokeberg, said that is her understanding as well: This
provision applies while someone is incarcerated. If that is the
case, she added, she doesn't believe there is a provision
currently for offenders to pay for their treatment. There is a
provision for offenders who are misdemeanants to pay for their
costs of incarceration, she noted.
Number 1516
MS. SEITZ commented, "I think right now they don't reimburse
anything for their cost of treatment while they're
incarcerated."
MS. BROWER affirmed that.
CHAIR ROKEBERG said he'd had that wrong. It is for the "typical
72-hour-type, or other shorter-term periods, on the misdemeanant
level." He asked: What about the felony level for
imprisonment?
MS. BROWER said there is no provision for that, to her
understanding.
CHAIR ROKEBERG asked Mr. Ford for confirmation that [AS
28.35.]032(o) only relates to the misdemeanor element.
MR. FORD affirmed that.
Number 1466
REPRESENTATIVE BERKOWITZ clarified that he had been looking at
subsection (l) above that [in Amendment 11], page 4, lines 2-3.
CHAIR ROKEBERG said he'd been confused, then added, "I knew we'd
introduced the element of treatment into the bill for the first
time; even if you're in corrections, it seems if somebody has
health insurance that pays for the treatment, they should be
paying for it."
REPRESENTATIVE BERKOWITZ replied that in this case, he hadn't
even looked at the insurance angle. He noted that the insurance
[companies] wouldn't be billed more than $2,000. He said that
doesn't seem right to him.
UNIDENTIFIED SPEAKER said the state would pick up the rest,
which doesn't seem right.
REPRESENTATIVE BERKOWITZ added:
Especially if ... a defendant had been paying into an
insurance program all along. Then the insurance
company winds up being the beneficiary of the state's
largesse, and I didn't notice that the fiscal
situation was so good, we could start taking care of
everybody now.
CHAIR ROKEBERG said that is why they are looking for some
reimbursement here.
UNIDENTIFIED SPEAKER said that if [the state] could get more
than $2,000, that would be even better.
Number 1387
REPRESENTATIVE COGHILL asked why the sentence "between two and
three" was put in there. He further asked whether it was meant
to be for indigent people that there would be a requirement to
repay up to $2,000.
CHAIR ROKEBERG replied that "looking at the misdemeanant
treatment, I think, was the real thrust of that." He added,
"We're mandating other treatment throughout the whole system
now, in the bill."
Number 1352
REPRESENTATIVE BERKOWITZ referred to [page 4, lines 6-7, of
Amendment 11], which read: "Except for reimbursement from a
permanent fund dividend as provided in this subsection,] payment
of the cost of treatment is not required if the court determines
the person is indigent. He said a person who [qualifies for] a
public defender is indigent, so there wouldn't be much
[verification] after that, unless the person got lucky and
inherited a lot of money in the meantime.
CHAIR ROKEBERG noted that previous discussion had included talk
about the limitation because the vast majority of people
[affected] would be judgment-proof. He said it does seem to run
into a problem regarding the "recoupment" of insurance.
MS. SEITZ emphasized that it is just for people who are
incarcerated, who currently aren't required to pay anything.
"So, we were looking for them to at least be required to pay
something," she noted.
Number 1288
MS. BROWER, in response to Chair Rokeberg, said she supposes an
offender may have a spouse with an insurance policy that would
cover the offender, but said she isn't sure what happens under
such insurance policies regarding treatment of an incarcerated
spouse. It isn't something that the department has explored.
MR. TURNER remarked that most insurance companies won't pay for
court-ordered treatment.
CHAIR ROKEBERG questioned the value of a cap, then, unless there
is some simple schedule adopted.
Number 1220
REPRESENTATIVE BERKOWITZ asked, however, whether most insurance
companies will pay if [the treatment] is medically necessary.
MR. TURNER said yes.
REPRESENTATIVE BERKOWITZ continued, "And it would seem that any
assessment would make a determination if there was some kind of
necessity?"
MR. TURNER reiterated that if the court orders the treatment,
then the insurance company won't pay.
REPRESENTATIVE BERKOWITZ asked, "If the court orders an
assessment, and the assessment yields a result that treatment is
necessary, then the insurance companies still aren't paying?"
[There was no audible response.]
CHAIR ROKEBERG said it is another topic, but an interesting one.
He noted that there had been debate over the definition of
"medical necessity" the previous year.
Number 1061
REPRESENTATIVE MEYER asked why the committee couldn't change the
["may not exceed] $2,000" [on page 4, line 3, Amendment 11] to
say "may not exceed $10,000". If a person could only pay
$2,000, that would be fine, he said; but if the person could pay
$10,000, that would be all the better.
CHAIR ROKEBERG indicated the desire to make it a realistic
number, but said he didn't object to Representative Meyer's
point.
MS. BROWER commented that in light of fines, restitution, and
other costs involved, she isn't sure at what point [the state]
would receive this money, if ever.
Number 1048
REPRESENTATIVE BERKOWITZ asked how much it would cost for 30
days [of treatment] at Charter North.
CHAIR ROKEBERG said it would be "big bucks," but the state
wouldn't necessarily put a person there.
REPRESENTATIVE BERKOWITZ suggested that if the state is
providing the equivalent service in a state-run facility, then
the state would be bearing the cost that otherwise an individual
could bear, and there might be circumstances under which the
insurance companies could bear that cost, as well.
Number 1061
REPRESENTATIVE MEYER again asked why the committee is limiting
it to $2,000, when perhaps [the state] could get more.
CHAIR ROKEBERG said it is a valid concern.
Number 1048
REPRESENTATIVE BERKOWITZ made a motion to amend Amendment 11 by
deleting from page 4, lines 2-3 [of the amendment], the
sentence, "The cost of treatment required to be paid to the
state under this subsection may not exceed $2,000."
Number 1014
REPRESENTATIVE OGAN expressed concern that removing the
limitation could wipe out a person's assets because of the
expense of these programs. He said he would be interested in
hearing testimony about the average cost of treatment.
CHAIR ROKEBERG said he believes it is about $6,300 [within the
prison system]. He requested confirmation from Ms. Brower.
MS. BROWER affirmed that.
CHAIR ROKEBERG objected to the amendment to Amendment 11. He
explained that he would like to see a cap [on the reimbursement]
and would be more open to the [$10,000] cap proposed by
Representative Meyers.
REPRESENTATIVE BERKOWITZ withdrew his amendment to Amendment 11.
Number 0923
REPRESENTATIVE MEYER made a motion [to amend Amendment 11, page
4, line 3, to delete "$2,000" and insert "10,000"].
CHAIR ROKEBERG asked whether there was any objection "at this
time." [No objection was stated]. He then announced that it
would be reviewed further.
HEATHER NOBREGA, Staff to Representative Norman Rokeberg, Alaska
State Legislature, speaking as the committee aide for the House
Judiciary Standing Committee, pointed out the need to include
the same provision on page 19, line 9 [of CSHB 4(TRA)], for the
purpose of consistency relating to the DWI [breathalyzer]
refusal.
CHAIR ROKEBERG made a motion to amend the amendment [to
Amendment 11] to include the same amount just adopted [$10,000]
on page 19, line 9, of the bill [CSHB 4(TRA)]. [No objection
was stated.]
CHAIR ROKEBERG asked whether there was further discussion on
Amendment 11, as amended. He then announced that Amendment 11,
as amended, was adopted.
Number 0780
CHAIR ROKEBERG made a motion to adopt Amendment 12 [22-
LS0046\S.9, Ford, 3/21/01]. [Amendment 12 is provided at the
end of the minutes on HB 4.]
MS. SEITZ explained that Amendment 12 contains changes requested
by the Department of Health & Social Services. It adds language
to the title; removes the language regarding treatment standards
from the current section of the bill; changes some language
regarding the cost of treatment that is not required under this
subsection, to make the language cleaner; redefines "alcohol
safety action program"; and inserts the standards for the
alcohol safety action program "over on the next pages, in Title
47."
Number 0726
LOREN JONES, CMH/API Replacement Project Director, Division of
Mental Health & Developmental Disabilities, Department of Health
& Social Services, came forward. He told members:
We had suggested and recommended that the changes be
made in AS 47.37.140, where the Division of Alcoholism
& Drug Abuse establishes the standards for treatment
programs. And our recommendation was that we just
amend that section to add ASAP [alcohol safety action
program] as well as the treatment to that.
We did not understand why this amendment was to [AS
47.37.]130, which basically sets forth what the
treatment programs are, not what the standards are.
And, in essence, it simply repeats most of the
language in [AS 47.37.]140 over here in .130(b), just
for ASAP.
In ... my discussion with Mike Ford, I believe he felt
that by putting it in [AS 47.37.]140, it violated the
single-subject rule of a bill. I'm not a lawyer; I
can't say. But it just didn't seem like this was the
appropriate place to be placing this particular
amendment, in [AS 47.37.]130(b), as opposed to
amending [AS 47.37.]140.
MR. JONES clarified that the language in question is on page 2
of Amendment 12; in the bill itself, it is on page 18, starting
at line 27. It would delete the section requiring, in the DMV
statutes, the establishment of standards for clinically
appropriate treatment. Mr. Jones explained:
It was our understanding that the sponsor wanted to
make sure that we had standards for ASAP programs, and
that's what we were attempting to do by making an
amendment to [AS 47.37.]140. This makes it to .130.
That was our only question, is exactly why it was in
that section.
CHAIR ROKEBERG asked Mr. Ford to respond.
Number 0577
MR. FORD said there is just some confusion about the proper way
to add the provisions that the department would like. The
original language submitted [by the department] amended [AS
47.37.]140, but those provisions deal with program facilities,
and he himself believed the language would be broader than could
be included in the bill. Therefore, he had redrafted it and
moved [the department's] language to [AS 47.37.]130, which deals
with the program itself, "because I thought that's what we were
talking about, standards for the program, not for actual
facilities." Mr. Ford suggested that with some additional work,
"we could come up with an approach that makes the department
happy and also avoids the other issues I'm concerned about."
MR. FORD, in answer to a member's question, pointed out that [AS
47.37.]140 is found neither in the bill nor the amendment. He
clarified that because of the need he saw to avoid broadening
the bill to the point where there would be constitutional
problems, he had narrowed the language and moved it to what he
thought to be the appropriate place. If the department feels
that isn't the appropriate place, Mr. Ford said he would be glad
to work towards finding another approach.
CHAIR ROKEBERG suggested that if the department wants the
language in the bill, [Amendment 12] should be adopted and then
members could work on a proposed committee substitute (CS). He
asked Mr. Jones whether he had a problem with that.
MR. JONES stated his preference to work on some language first,
but then indicated he had just been given a directive otherwise.
Number 0420
REPRESENTATIVE BERKOWITZ referred to page 2, Section 51, of
Amendment 12 and noted that an ASAP program is being developed
for persons 21 years of age or older. He asked whether there is
an equivalent program for people 21 years old or younger.
CHAIR ROKEBERG said it was a good question, then answered no.
He said there was other legislation, which he called a "minor in
possession/consuming bill," which has a recommendation of the
department to establish a "junior ASAP" program; he acknowledged
that it would be expensive.
REPRESENTATIVE BERKOWITZ responded, "Less expensive than
allowing this stuff to continue."
CHAIR ROKEBERG said he does have a concern about stipulating as
to [a person's] age in the bill "at this juncture." He asked
whether the recommendation [of age 21 or older] had come from
the department.
Number 0304
MR. JONES affirmed that. He explained:
We had a similar-language amendment ... to set up a
program for persons under the age of 21, and it was
suggested to us that that would be covered under the
"minor consuming bill," House Bill 179. So, it was
not included in this because we're talking pretty much
about drunk driving.
Number 0285
REPRESENTATIVE BERKOWITZ said if it can all be put in one bill,
that seems good. "This is the horse that's running," he added.
CHAIR ROKEBERG expressed concern about the total fiscal notes.
REPRESENTATIVE BERKOWITZ said it would be a small addition to
this, "and a huge deletion from that other thing that's standing
behind."
CHAIR ROKEBERG said his biggest concern now is the gap in ages
between those ages 15 through 21 who may or may not be covered
under a true [juvenile] ASAP, depending on how it is defined.
Number 0195
REPRESENTATIVE OGAN asked whether the department has an
estimated fiscal note for this amendment, which seems to add all
kinds of new programs and job descriptions on pages 2-3 [of the
amendment].
MR. JONES said there is no fiscal note.
CHAIR ROKEBERG added that they are existing programs; it is a
matter of whether they are funded.
MR. JONES explained that the sections being referenced by
Representative Ogan are already in [AS 47.37.]140 for treatment
programs. This simply adds it for the existing ASAP. At this
time, there are only ten programs. "We do not feel that there's
a fiscal note by including those in this bill," he concluded.
Number 0119
REPRESENTATIVE OGAN said he would remove his objection to that
section [of Amendment 12]. He asked whether Section 51 would
cause an additional expense.
MR. JONES answered, "No. Our intent here is to give a little
stronger statutory language to a program that is existing, our
alcohol safety action program that we operate in ten communities
plus Anchorage."
Number 0069
CHAIR ROKEBERG restated his concern about the distinction
regarding persons 21 years or older. He asked what would happen
if the age limitation were deleted, thus making the program
available to juveniles as well; he asked whether the fiscal note
would go up in that case.
MR. JONES indicated he didn't think so with regard to this bill.
TAPE 01-42, SIDE A
Number 0001
CHAIR ROKEBERG made a motion to delete the phrase "21 years of
age or older" on page 2, lines 11-12 [of Amendment 12]. [This
is only partially on the tape, but was restated later.] He said
he would be open to working with the department and committee
members on this. He indicated it would be discussed in terms of
the "MIP" [minor in possession] bill too.
MR. JONES said the majority of this section deals with issues
generally handled in district court for adults, the forfeiture
of vehicles for DWI offenses. Therefore, "21 years of age or
older" fits better.
CHAIR ROKEBERG asked what happens for persons 18, 19, or 21
years old. He said they are not under juvenile court
jurisdiction.
MR. JONES affirmed that, saying that oftentimes they end up in
the adult ASAP programs under the drunk-driving offenses. He
suggested perhaps Chair Rokeberg would want to set the limit at
18 years, rather than having an unlimited age.
CHAIR ROKEBERG asked Mr. Guaneli whether, in the current court
system, DWI youth offenders are handled as adults.
Number 0154
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law,
answered that the Department of Corrections has some sort of
arrangement with juvenile facilities for holding persons under
the age of 18 in a juvenile facility; however, they are treated
as adults for purposes of district court or superior court
proceedings.
CHAIR ROKEBERG mentioned the ASAP program for purposes of DWI
and AS 47.37.040. He asked Mr. Ford how broadly this is
"sweeping this brush."
MR. FORD said he thinks Chair Rokeberg is on the right track.
If the division is going to develop an alcohol safety action
program, Mr. Ford said he doesn't know why there should be a
distinction drawn between a 21-year-old and an under-21-year-
old. In response to Chair Rokeberg's mention of getting another
fiscal note, Mr. Ford replied, "That may be true. But as we've
heard from the department, they're ... saying there is no
additional fiscal effect."
Number 0325
CHAIR ROKEBERG, in response to a question by Representative
Coghill, clarified that he was saying the age issue should be
deleted, then sorted out later, if the committee wants to
establish another [age limit]. He said potentially, if there is
a DWI offense, even by a juvenile, that person should be
eligible for "the ASAP net" in that program. "And it remains to
be seen what we're going to be doing with the other issue," he
added.
Number 0423
CHAIR ROKEBERG restated his motion to amend [Amendment 12] by
deleting the phrase "21 years of age or older" [on page 2, line
11]; he asked whether there was any objection. In response to a
question by Representative Ogan, he referred to his discussion
with Mr. Guaneli and said:
We're treating even "under-18s" as an adult. ... We're
not talking about how they're dealt with by [the
Department of] Corrections and so forth; we're just
talking about ASAP here, which is ... how they get in
and out of ... the evaluation and treatment elements.
So, I think they should have the benefit of that, even
if they're a [juvenile].
Number 0484
CHAIR ROKEBERG, hearing no objection, announced that the
amendment to Amendment 12 was adopted.
CHAIR ROKEBERG asked whether there was any objection to
Amendment 12, as amended. There being no objection, Amendment
12, as amended, was adopted.
Number 0521
CHAIR ROKEBERG turned attention to Amendment 13A [22-
LS0046\S.11, Ford, 3/23/01] and Amendment 13B [22-LS0046\S.14,
Ford, 3/23/01]. [Amendments 13A and 13B are found at the end of
the minutes on HB 4.]
MS. SEITZ explained the difference between the two proposed
amendments. Amendment 13A deals with the discussion of how to
cover "inhalant" under the DWI/DUI [driving under the influence]
statutes; goes back to using the term "intoxicated" and includes
"hazardous volatile material or substance" as an element of
driving while intoxicated; and changes the references to
"alcoholic beverage" back to "intoxicating liquor". Amendment
13B also changes the title of the bill, but everywhere that the
phrase "under the influence of an alcoholic beverage" occurs,
"inhalant" is also added and defined. It is a policy decision
as to which way the committee wishes to handle this, Ms. Seitz
explained, in order to ensure that inhalants are included.
CHAIR ROKEBERG noted that in the House Transportation Standing
Committee, at the request of Representative Kapsner, the
"inhalant concept" was introduced; he expressed appreciation for
that. Chair Rokeberg said it is really a matter of
nomenclature, and it had become a drafting problem. Either
"inhalant" needs to be added throughout, because it is not a
defined controlled substance, or the language could revert to
the "DWI" rather than using the new "DUI" designation.
Number 0629
REPRESENTATIVE BERKOWITZ indicated his belief that going from
"DWI" to "DUI" is a good step. He continued:
As for not sweeping in inhalants, it's something I was
concerned about. There [were] two approaches that
occurred to me. The first was to read the statutes
that we had and see what they did, ... before I made
an argument. And if you track "controlled substance",
on page 28 of the bill, controlled substance includes
a hazardous volatile material or substance that has
been knowingly smelled or inhaled; and then it goes
on, and the next section is "hazardous volatile
material or substance" has the meaning given in [AS]
47.37.270. ...
The other alternative - besides doing what we already
seem to be trying to do - would be, instead of talking
about "under the influence of alcoholic beverage" or
... "controlled substance", just say "other
substance".
Now, ... you could think of these weird things that
don't quite fit in with what fits under [AS]
47.37.270, because ... it includes things that are
smelled; I don't think it includes things that are
taken orally. So, there's that anomaly. But ... if
you get away from it, and ... instead of talking about
"controlled substance", just talk about "other
substance", ... that just opens up the universe ...;
instead of having to prove it ... in a generic way,
you can prove it for each case.
CHAIR ROKEBERG said he wasn't sure he bought into that argument;
"other substance" is pretty wide open. He asked Mr. Ford to
comment.
Number 0740
MR. FORD responded that he thinks there is a problem with
including inhalants under controlled substances, because they're
not controlled substances. He also said he wouldn't recommend
going to "any substance" or "other substance", because those are
too broad. He said the question will be whether a person is
impaired. He restated his belief that it would be a problem.
REPRESENTATIVE OGAN asked whether the term "any other substance"
would include marijuana, crack [cocaine], opiates, barbiturates,
and "the painter that sprays lacquer for his business and
doesn't wear a respirator."
MR. FORD said that brings up an interesting point: There is no
definition of "controlled substance" for this offense, although
there is a definition in Title 11. He explained:
I think that's pretty much where the courts would look
when they look at that question. And that, of course,
is very, very well defined: A controlled substance is
something that's listed on our schedule of controlled
substances. Inhalants, with the definition we have,
would not be a controlled substance. And that's what
we're trying to do, is to be very clear on what it is
that triggers this offense.
Number 0861
REPRESENTATIVE OGAN asserted that [HB 4] is no longer a drunk
driving bill, but is an "operating any kind of vehicle under any
kind of thing that impairs your ability to operate" bill. He
asked whether that is a fair assessment, if it were to be
amended that way.
CHAIR ROKEBERG indicated that either way, it includes other
substances such as drugs.
MR. FORD said it includes controlled substances as well as
"hazardous and volatile material or substance".
CHAIR ROKEBERG maintained that it is more of a drafting problem,
and a matter of language, rather than a matter of what the
committee is trying to do.
Number 0932
REPRESENTATIVE BERKOWITZ indicated that it seems the substances
on the schedule in Title 11 ought to be retained, because those
are illegal drugs. He pointed out that those are things that
people could chew, for example, rather than smell or inhale. He
also noted that "hazardous volatile material or substance" is
defined. He read from AS 47.37.270, which is referenced in
Section 48 of the bill. That definition read:
(10) "hazardous volatile material or substance"
(A) means a material or substance that is readily
vaporizable at room temperature and whose vapors or
gases, when inhaled,
(i) pose an immediate threat to the life or
health of the person; or
(ii) are likely to have adverse delayed effects
on the health of the person;
(B) includes, but is not limited to,
(i) gasoline;
(ii) materials and substances containing
petroleum distillates; and
(iii) common household materials and substances
whose containers bear a notice warning that inhalation
of vapors or gases may cause physical harm;
REPRESENTATIVE BERKOWITZ agreed with Representative Ogan that it
doesn't include the controlled substances that one would
normally think of.
REPRESENTATIVE BERKOWITZ pointed out that the committee had
already done more than a third of the work [on the 35 proposed
amendments]; he noted that at least two or three of his
amendments no longer needed to be offered, because those issues
had already been dealt with.
[There was committee discussion about the upcoming schedule, and
a brief at-ease. Following the at-ease, the meeting was
recessed to a call of the chair, and HB 4 was held over.]
AMENDMENTS
The following amendments to CSHB 4(TRA) were either discussed or
adopted during the hearing. [Shorter amendments are provided in
the main text only.]
Amendment 3 [22-LS0046\S.7, Ford, 3/21/01] (adopted):
Page 17, lines 14 - 29:
Delete
"[(C) NOT LESS THAN 60 DAYS AND A FINE OF
NOT LESS THAN $1,000 IF THE PERSON HAS BEEN PREVIOUSLY
CONVICTED TWICE AND IS NOT SUBJECT TO PUNISHMENT UNDER
(n) OF THIS SECTION;
(D) NOT LESS THAN 120 DAYS AND A FINE OF
NOT LESS THAN $2,000 IF THE PERSON HAS BEEN PREVIOUSLY
CONVICTED THREE TIMES AND IS NOT SUBJECT TO PUNISHMENT
UNDER (n) OF THIS SECTION;
(E) NOT LESS THAN 240 DAYS AND A FINE OF
NOT LESS THAN $3,000 IF THE PERSON HAS BEEN PREVIOUSLY
CONVICTED FOUR TIMES AND IS NOT SUBJECT TO PUNISHMENT
UNDER (n) OF THIS SECTION;
(F) NOT LESS THAN 360 DAYS AND A FINE OF
NOT LESS THAN $4,000 IF THE PERSON HAS BEEN PREVIOUSLY
CONVICTED MORE THAN FOUR TIMES AND IS NOT SUBJECT TO
PUNISHMENT UNDER (n) OF THIS SECTION;]"
Insert
"(C) not less than 60 days and a fine of
not less than $4,000 [$1,000] if the person has been
previously convicted twice and is not subject to
punishment under (n) of this section;
(D) not less than 120 days and a fine of
not less than $5,000 [$2,000] if the person has been
previously convicted three times and is not subject to
punishment under (n) of this section;
(E) not less than 240 days and a fine of
not less than $6,000 [$3,000] if the person has been
previously convicted four times and is not subject to
punishment under (n) of this section;
(F) not less than 360 days and a fine of
not less than $7,000 [$4,000] if the person has been
previously convicted more than four times and is not
subject to punishment under (n) of this section;"
Amendment 6 [22-LS0046\S.13, Ford, 3/23/01] (adopted):
Page 16, lines 16 - 17:
Delete "not more"
Insert "less"
Page 16, line 18:
Delete "not more"
Insert "less"
Page 16, line 19:
Delete "not more"
Insert "less"
Page 17, line 7:
Delete "more than 0.10 percent"
Insert "0.10 percent or more"
Page 17, line 8:
Delete "more than 100 milligrams"
Insert "100 milligrams or more"
Page 17, line 9:
Delete "more than 0.10 grams"
Insert "0.10 grams or more"
Amendment 11 [22-LS0046\S.16, Ford, 3/23/01] (original version;
adopted after being amended):
Page 7, line 27:
Delete "The"
Insert "Except as provided under AS
28.35.030(n)(3) and 28.35.032(p)(3), the [THE]"
Page 18, lines 5 - 8:
Delete
"(3) the court shall revoke the person's
driver's license, privilege to drive, or privilege to
obtain a license under AS 28.15.181, and may that
order the motor vehicle or aircraft that was used in
commission of the offense [TO] be forfeited under
AS 28.35.036."
Insert
"(3) the court shall revoke the person's
driver's license, privilege to drive, or privilege to
obtain a license under AS 28.15.181, and may order
that the motor vehicle, [OR] aircraft, or watercraft
that was used in commission of the offense [TO] be
forfeited under AS 28.35.036;
(4) the court shall order that any motor
vehicle, aircraft, or watercraft that was used in the
commission of the offense be forfeited under
AS 28.35.036 if the person has been previously
convicted two or more times."
Page 25, following line 20:
Insert new bill sections to read:
"* Sec. 40. AS 28.35.032(g) is amended to read:
(g) Upon conviction under this section,
(1) the court shall impose a minimum
sentence of imprisonment of
(A) not less than 72 consecutive hours and
a fine of not less than $500 [$250] if the person has
not been previously convicted;
(B) not less than 30 days, or not less than
20 days if the person performs 10 days of community
service, and a fine of not less than $3,000 [$500] if
the person has been previously convicted once;
(C) not less than 60 days and a fine of not
less than $4,000 [$1,000] if the person has been
previously convicted twice and is not subject to
punishment under (p) of this section;
(D) not less than 120 days and a fine of
not less than $5,000 [$2,000] if the person has been
previously convicted three times and is not subject to
punishment under (p) of this section;
(E) not less than 240 days and a fine of
not less than $6,000 [$3,000] if the person has been
previously convicted four times and is not subject to
punishment under (p) of this section;
(F) not less than 360 days and a fine of
not less than $7,000 [$4,000] if the person has been
previously convicted more than four times and is not
subject to punishment under (p) of this section;
(2) the court may not
(A) suspend execution of the sentence
required by (1) of this subsection or grant probation,
except on condition that the person serve the minimum
imprisonment under (1) of this subsection; or
(B) suspend imposition of sentence;
(3) the court shall revoke the person's
driver's license, privilege to drive, or privilege to
obtain a license under AS 28.15.181, and may order
that the motor vehicle, [OR] aircraft, or watercraft
that was used in commission of the offense be
forfeited under AS 28.35.036; [AND]
(4) the court shall order that any motor
vehicle, aircraft, or watercraft that was used in the
commission of the offense be forfeited under
AS 28.35.036 if the person has been previously
convicted two or more times; and
(5) the sentence imposed by the court under
this subsection shall run consecutively with any other
sentence of imprisonment imposed on the person.
* Sec. 41. AS 28.35.032(h) is amended to read:
(h) Except as prohibited by federal law or
regulation, every provider of treatment programs to
which persons are ordered under [(l) OF] this section
shall supply the judge, prosecutor, defendant, and an
agency involved in the defendant's treatment with
information and reports concerning the defendant's
past and present assessment, treatment, and progress
[ALASKA COURT SYSTEM WITH THE INFORMATION REGARDING
THE CONDITION AND TREATMENT OF THOSE PERSONS AS THE
SUPREME COURT MAY REQUIRE BY RULE]. Information
compiled under this subsection is confidential and may
only be used in connection with court proceedings
involving the defendant or the defendant's treatment
[BY A COURT IN SENTENCING A PERSON CONVICTED UNDER
THIS SECTION, OR BY AN OFFICER OF THE COURT IN
PREPARING A PRE-SENTENCE REPORT FOR THE USE OF THE
COURT IN SENTENCING A PERSON CONVICTED UNDER THIS
SECTION]."
Renumber the following bill sections accordingly.
Page 25, following line 26:
Insert new bill sections to read:
"* Sec. 43. AS 28.35.032(l) is amended to read:
(l) The court shall order a person convicted
under this section to satisfy the screening,
evaluation, referral, and program requirements of an
alcohol safety action program if such a program is
available in the community where the person resides,
or a private or public treatment facility approved by
the division of alcoholism and drug abuse, of the
Department of Health and Social Services, under
AS 47.37 to make referrals for rehabilitative
treatment or to provide rehabilitative treatment. If
a person is convicted under (p) of this section, the
court shall order the person to be evaluated as
required by this subsection before the court imposes
sentence for the offense. Treatment required under
this subsection shall occur, as much as possible, when
the person is incarcerated. The cost of treatment
required under this subsection shall be paid to the
state by the person being treated. The cost of
treatment required to be paid to the state under this
subsection may not exceed $2,000. Upon the person's
conviction, the court shall include reimbursement of
the cost of treatment as a part of the sentence.
Except for reimbursement from a permanent fund
dividend as provided in this subsection, payment of
the cost of treatment is not required if the court
determines the person is indigent. For costs of
treatment that are not paid by the person as required
by this subsection, the state shall seek reimbursement
from the person's permanent fund dividend as provided
in AS 43.23.065. In this subsection, "cost of
treatment" does not include costs incurred as a result
of treatment not required under the treatment
standards established under this subsection.
* Sec. 44. AS 28.35.032(o) is amended to read:
(o) Imprisonment required under (g)(1)(A) or (B)
of this section shall be served at a community
residential center, or if a community residential
center is not available, at another appropriate place
determined by the commissioner of corrections. The
cost of imprisonment resulting from the sentence
imposed under (g)(1) of this section shall be paid to
the state by the person being sentenced provided,
however, that the cost of imprisonment required to be
paid under this subsection may not exceed $2,000
[$1,000]. Upon the person's conviction, the court
shall include the costs of imprisonment as a part of
the judgment of conviction. Except for reimbursement
from a permanent fund dividend as provided in this
subsection, payment of the cost of imprisonment is not
required if the court determines the person is
indigent. For costs of imprisonment that are not paid
by the person as required by this subsection, the
state shall seek reimbursement from the person's
permanent fund dividend as provided under
AS 43.23.065. While at the community residential
center or other appropriate place, a person sentenced
under (g)(1)(A) of this section shall perform at least
24 hours of community service work and a person
sentenced under (g)(1)(B) of this section shall
perform at least 160 hours of community service work,
as required by the director of the community
residential center or other appropriate place. In
this subsection, "appropriate place" means a facility
with 24-hour on-site staff supervision that is
specifically adapted to provide a residence, and
includes a correctional center, [RESIDENTIAL TREATMENT
FACILITY, HOSPITAL,] halfway house, group home, work
farm, work camp, or other place that provides varying
levels of restriction; "appropriate place" does not
mean a residential treatment facility or a hospital.
* Sec. 45. AS 28.35.032(p) is amended to read:
(p) A person is guilty of a class C felony if
the person is convicted under this section and has
been previously convicted two or more times since
January 1, 1996, and within the 10 [FIVE] years
preceding the date of the present offense. For
purposes of determining minimum sentences based on
previous convictions, the provisions of
AS 28.35.030(o)(4) apply. Upon conviction,
(1) the court shall impose a fine of not
less than $10,000 [$5,000] and a minimum sentence of
imprisonment of not less than
(A) 240 [120] days if the person has been
previously convicted twice;
(B) 480 [240] days if the person has been
previously convicted three times;
(C) two years [360] days if the person has
been previously convicted four or more times;
(2) the court may not
(A) suspend execution of the sentence
required by (1) of this subsection or grant probation,
except on condition that the person serve the minimum
imprisonment under (1) of this subsection; or
(B) suspend imposition of sentence;
(3) the court shall permanently revoke the
person's driver's license, privilege to drive, or
privilege to obtain a license subject to restoration
under (r) of this section [UNDER AS 28.15.181(c)];
(4) the court may order as a condition of
probation or parole that the person take a drug, or
combination of drugs, intended to prevent consumption
of an alcoholic beverage; a condition of probation
imposed under this paragraph is in addition to any
other condition authorized under another provision of
law;
(5) the sentence imposed by the court under
this subsection shall run consecutively with any other
sentence of imprisonment imposed on the person; [AND]
(6) the court shall [MAY] also order
forfeiture under AS 28.35.036, of the motor vehicle,
[OR] aircraft, or watercraft used in the commission of
the offense, subject to remission under AS 28.35.037;
and
(7) shall order the department to revoke
the registration for any vehicle registered by the
department in the name of the person convicted under
this subsection; if a person convicted under this
subsection is a registered co-owner of a vehicle, the
department shall reissue the vehicle registration and
omit the name of the person convicted under this
subsection.
* Sec. 46. AS 28.35.032 is amended by adding new
subsections to read:
(r) Upon request, the department shall review a
driver's license revocation imposed under (p)(3) of
this section and may restore the driver's license if
(1) the license has been revoked for a
period of at least 10 years;
(2) the person has not been convicted of a
criminal offense since the license was revoked; and
(3) the person provides proof of financial
responsibility.
(s) A person who fails to satisfy alcoholism
treatment requirements imposed by the court or an
authorized agency under (l) of this section is not
eligible for good time deductions credited under
AS 33.20.
(t) If a person is convicted under this section
and has been previously convicted, the court shall
order the person to surrender the registration plates
for any vehicle registered or co-registered in the
person's name. The person shall surrender the
registration plates to the department by the close of
the next business day. A person other than the person
convicted under this section who applies to register a
motor vehicle that has registration plates that were
required to be surrendered under this section but that
were not surrendered as required by this subsection
may not register the vehicle unless the person
registering the vehicle provides proof satisfactory to
the department that the person did not know that the
registration plates were required to be surrendered
under this subsection or the person pays twice the
applicable registration fee required under
AS 28.10.421."
Renumber the following bill sections accordingly.
Page 27, lines 27 - 31:
Delete "(a) After conviction of an offense under
AS 28.35.030 or 28.35.032, the state shall [MAY] move
the court to order the forfeiture of the motor vehicle
[,] or aircraft involved in the commission of the
offense if the convicted person has been previously
convicted in this or another jurisdiction [OF MORE
THAN ONE OF THE FOLLOWING OFFENSES] or has [MORE THAN
ONCE] been previously convicted"
Insert "(a) After conviction of an offense under
AS 28.35.030 or 28.35.032, the state may move the
court to order the forfeiture of the motor vehicle [,]
or aircraft involved in the commission of the offense
if the convicted person has been previously convicted
twice in this or another jurisdiction [OF MORE THAN
ONE OF THE FOLLOWING OFFENSES OR HAS MORE THAN ONCE
BEEN PREVIOUSLY CONVICTED]"
Page 28, following line 6:
Insert a new bill section to read:
"* Sec. 53. AS 28.35.038 is amended to read:
Sec. 28.35.038. Municipal impoundment and
forfeiture. Notwithstanding other provisions in this
title, a municipality may adopt an ordinance providing
for the impoundment or forfeiture of a motor vehicle
[,] or aircraft [,] involved in the commission of an
offense under AS 28.35.030, 28.35.032, or an ordinance
with elements substantially similar to AS 28.35.030 or
28.35.032. An ordinance adopted under this section
may include a fee for the administrative costs
incurred by the municipality and is not required to be
consistent with this title or regulations adopted
under this title."
Renumber the following bill sections accordingly.
Page 29, line 2:
Delete "Section 47"
Insert "Section 54"
Page 29, line 3:
Delete "Section 51"
Insert "Section 58"
Amendment 12 [22-LS0046\S.9, Ford, 3/21/01] (original version;
adopted after being amended):
Page 1, line 8, following "Code;":
Insert "relating to alcoholism treatment for
offenders convicted of certain offenses involving
operating a motor vehicle, aircraft, or watercraft;"
Page 18, line 29, through page 19, line 3:
Delete "The Department of Health and Social
Services shall, by regulation, establish standards for
clinically appropriate treatment required under this
subsection. The treatment standards established under
this subsection must include compliance with alcohol
or drug treatment, anger management, counseling,
parent training, and domestic violence prevention."
Page 19, lines 16 - 18:
Delete "In this subsection, "cost of treatment"
does not include costs incurred as a result of
treatment not required under the treatment standards
established under this subsection."
Insert "This subsection does not apply to costs
of treatment incurred by a person if the cost is
incurred as a result of treatment not required under
this subsection."
Page 28, following line 6:
Insert a new bill section to read:
"* Sec. 47. AS 28.35.039(2) is amended to read:
(2) "alcohol safety action program" means a
program for alcohol and substance abuse screening,
referral, and monitoring developed and implemented or
approved by the Department of Health and Social
Services under AS 47.37 [DESIGNATED BY THE
COMMISSIONER OF HEALTH AND SOCIAL SERVICES AS AN
ALCOHOL SAFETY ACTION PROGRAM]."
Renumber the following bill sections accordingly.
Page 28, following line 25:
Insert new bill sections to read:
"* Sec. 51. AS 47.37.040 is amended by adding a
new paragraph to read:
(20) develop and implement, or designate,
in cooperation with other state or local agencies, an
alcohol safety action program that provides alcohol
and substance abuse screening, referral, and
monitoring services to persons 21 years of age or
older who have been referred by a court in connection
with a charge or conviction of a misdemeanor involving
the use of a motor vehicle, aircraft, or watercraft
and alcohol or a controlled substance, or referred by
an agency of the state with the responsibility for
administering motor vehicle laws in connection with a
driver's license action involving the use of alcohol
or a controlled substance.
* Sec. 52. AS 47.37.130(b) is amended to read:
(b) The program of the division must include
(1) emergency treatment provided by a
facility affiliated with or part of the medical
service of a general hospital;
(2) inpatient treatment;
(3) intermediate treatment; [AND]
(4) outpatient and follow-up treatment; and
(5) standards for alcohol safety action
programs; the standards may vary in their requirements
and stringency according to the population, price
level, remoteness, access to transportation, and
availability of ancillary services of the area to be
served; a program must meet the applicable standards
before it is approved by the division as an alcohol
safety action program; the standards required under
this paragraph shall be established in a manner that
provides protection of the health, safety, and well-
being of clients of the affected programs and
protection for the affected programs from exposure to
malpractice and liability actions.
* Sec. 53. AS 47.37.130 is amended by adding new
subsections to read:
(h) The division shall
(1) inspect, on a regular basis, approved
public and private alcohol safety action programs at
reasonable times and in a reasonable manner; and
(2) maintain a list of approved public and
private alcohol safety action programs.
(i) An approved public and private alcohol
safety action program shall file with the division on
request data, statistics, schedules, and information
that the division reasonably requires. An approved
program that fails without good cause to furnish any
data, statistics, schedules, or information as
requested, or files fraudulent returns of them, shall
be removed from the list of approved programs.
(j) The director, after holding a hearing under
the provisions of AS 44.62 (Administrative Procedure
Act), may suspend, revoke, limit, restrict, or refuse
to grant an approval for an alcohol safety action
program for failure to meet standards established
under (b) of this section."
Renumber the following bill sections accordingly.
Page 29, line 2:
Delete "Section 47"
Insert "Section 48"
Page 29, line 3:
Delete "sec. 51"
Insert "sec. 55"
Amendment 13A [22-LS0046\S.11, Ford, 3/23/01] (discussed but
neither moved nor adopted at this hearing):
Page 1, line 2:
Delete "under the influence of an alcoholic
beverage or controlled substance"
Insert "intoxicated"
Page 1, lines 7 - 8:
Delete "relating to the definition of 'controlled
substance' for purposes of the Alaska Uniform Vehicle
Code;"
Page 2, lines 15 - 28:
Delete all material.
Renumber the following bill sections accordingly.
Page 3, lines 17 - 18:
Delete "under the influence of an alcoholic
beverage or controlled substance"
Insert "intoxicated"
Page 3, line 22, through page 4, line 13:
Delete all material.
Renumber the following bill sections accordingly.
Page 4, line 20, through page 6, line 8:
Delete all material.
Renumber the following bill sections accordingly.
Page 6, lines 15 - 16:
Delete "under the influence of an alcoholic
beverage or controlled substance [INTOXICATED]"
Insert "intoxicated"
Page 6, line 27, through page 7, line 19:
Delete all material.
Renumber the following bill sections accordingly.
Page 12, line 14, through page 13, line 8:
Delete all material.
Renumber the following bill sections accordingly.
Page 13, lines 14 - 15:
Delete "under the influence of an alcoholic
beverage or controlled substance [INTOXICATED]"
Insert "intoxicated"
Page 13, lines 17 - 18:
Delete "under the influence of an alcoholic
beverage or controlled substance [INTOXICATED]"
Insert "intoxicated"
Page 14, line 12, through page 15, line 22:
Delete all material.
Renumber the following bill sections accordingly.
Page 15, lines 24 - 25:
Delete "under the influence of an alcoholic
beverage or controlled substance [INTOXICATED]"
Insert "intoxicated"
Page 15, line 27:
Delete "an alcoholic beverage"
Insert "a hazardous volatile material or
substance"
Page 16, lines 3 - 4:
Delete "an alcoholic beverage"
Insert "a hazardous volatile material or
substance"
Page 16, lines 6 - 7:
Delete "under the influence of an alcoholic
beverage or controlled substance [INTOXICATED]"
Insert "intoxicated"
Page 21, line 18:
Delete "REPEALED"
Insert ""hazardous volatile material or
substance" has the meaning given in AS 47.37.270;
[REPEALED]"
Page 21, line 31, through page 22, line 1:
Delete "under the influence of an alcoholic
beverage or controlled substance [INTOXICATED,]"
Insert "intoxicated [,]"
Page 22, lines 8 - 10:
Delete "under the influence of an alcoholic
beverage or controlled substance [INTOXICATED]"
Insert "intoxicated"
Page 23, lines 12 - 13:
Delete "under the influence of an alcoholic
beverage or controlled substance [INTOXICATED]"
Insert "intoxicated"
Page 23, lines 17 - 18:
Delete "under the influence of an alcoholic
beverage or controlled substance [INTOXICATED]"
Insert "intoxicated"
Page 24, line 22, through page 25, line 26:
Delete all material.
Renumber the following bill sections accordingly.
Page 25, lines 30 - 31:
Delete "under the influence of an alcoholic
beverage or controlled substance [INTOXICATED]"
Insert "intoxicated"
Page 26, lines 6 - 7:
Delete "an alcoholic beverage [INTOXICATING
LIQUOR]"
Insert "intoxicating liquor"
Page 26, lines 13 - 14:
Delete "an alcoholic beverage [INTOXICATING
LIQUOR]"
Insert "intoxicating liquor"
Page 26, lines 15 - 16:
Delete "an alcoholic beverage [INTOXICATING
LIQUOR]"
Insert "intoxicating liquor"
Page 26, lines 21 - 22:
Delete "an alcoholic beverage [INTOXICATING
LIQUOR]"
Insert "intoxicating liquor"
Page 27, lines 6 - 14:
Delete all material.
Renumber the following bill sections accordingly.
Page 28, lines 2 - 3:
Delete "under the influence of an alcoholic
beverage or controlled substance [INTOXICATED]"
Insert "intoxicated"
Page 28, lines 13 - 25:
Delete all material.
Renumber the following bill sections accordingly.
Page 28, line 28:
Delete "Section 6"
Insert "Section 3"
Page 29, line 2:
Delete "Section 47"
Insert "Section 32"
Page 29, line 3:
Delete "sec. 51"
Insert "sec. 34"
Amendment 13B [22-LS0046\S.14, Ford, 3/23/01] (discussed but
neither moved nor adopted at this hearing):
Page 1, line 2, following "beverage":
Insert ", inhalant,"
Page 1, lines 7 - 8:
Delete "relating to the definition of 'controlled
substance' for purposes of the Alaska Uniform Vehicle
Code;"
Page 2, line 16, following "beverage":
Insert ", inhalant,"
Page 2, line 19, following "beverage":
Insert ", inhalant,"
Page 2, line 22, following "beverage":
Insert ", inhalant,"
Page 3, line 18, following "beverage":
Insert ", inhalant,"
Page 4, line 10, following "beverage":
Insert ", inhalant,"
Page 4, line 12, following "beverage":
Insert ", inhalant,"
Page 4, line 22, following "beverage":
Insert ", inhalant,"
Page 4, line 25, following "beverage":
Insert ", inhalant,"
Page 5, line 2, following "beverage":
Insert ", inhalant,"
Page 6, line 3, following "beverage":
Insert ", inhalant,"
Page 6, line 16, following "beverage":
Insert ", inhalant,"
Page 7, line 7, following "beverage":
Insert ", inhalant,"
Page 7, line 14, following "beverage":
Insert ", inhalant,"
Page 12, line 16, following "beverage":
Insert ", inhalant,"
Page 12, line 18, following "beverage":
Insert ", inhalant,"
Page 12, line 20, following "beverage":
Insert "or inhalant"
Page 12, line 27, following "beverage":
Insert ", inhalant,"
Page 12, line 30, following "beverage":
Insert ", inhalant,"
Page 13, line 5, following "beverage":
Insert ", inhalant,"
Page 13, line 14, following "beverage":
Insert ", inhalant,"
Page 13, line 18, following "beverage":
Insert ", inhalant,"
Page 15, line 9, following "beverage":
Insert ", inhalant,"
Page 15, line 13, following "beverage":
Insert ", inhalant,"
Page 15, line 25, following "beverage":
Insert ", inhalant,"
Page 15, line 28, following "liquor,":
Insert "inhalant,"
Page 16, line 4, following "liquor,":
Insert "an inhalant,"
Page 16, line 7, following "beverage":
Insert ", inhalant,"
Page 21, line 18:
Delete "REPEALED"
Insert ""inhalant" has the meaning given to the
"phrase hazardous volatile material or substance" in
AS 47.37.270;"
Page 21, line 31, following "beverage":
Insert ", inhalant,"
Page 22, line 9, following "beverage":
Insert ", inhalant,"
Page 23, line 12, following "beverage":
Insert ", inhalant,"
Page 23, line 18, following "beverage":
Insert ", inhalant,"
Page 24, line 24, following "beverage":
Insert ", inhalant,"
Page 25, line 3, following "beverage":
Insert ", inhalant,"
Page 25, line 6, following "beverage":
Insert ", inhalant,"
Page 25, line 11, following "beverage":
Insert ", inhalant,"
Page 25, line 19, following "beverage":
Insert ", inhalant,"
Page 25, line 23, following "beverage":
Insert ", inhalant,"
Page 25, line 31, following "beverage":
Insert ", inhalant,"
Page 27, line 9, following "beverage":
Insert ", inhalant,"
Page 28, line 2, following "beverage":
Insert ", inhalant,"
Page 28, lines 13 - 17:
Delete all material.
Renumber the following bill sections accordingly.
Page 28, line 22, following "beverage":
Insert ", inhalant,"
[End of amendments - HB 4 was held over, with the meeting having
been recessed to a call of the chair.]
ADJOURNMENT
Number 1203
CHAIR ROKEBERG [recessed] the House Judiciary Standing Committee
meeting at 3:15 p.m., to a call of the chair.
| Document Name | Date/Time | Subjects |
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