03/28/2001 01:07 PM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 28, 2001
1:07 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. 52
"An Act relating to the Interstate Compact for Adult Offender
Supervision and the State Council for Interstate Adult Offender
Supervision; amending Rules 4 and 24, Alaska Rules of Civil
Procedure; and providing for an effective date."
- MOVED HB 52 OUT OF COMMITTEE
HOUSE BILL NO. 40
"An Act providing for the revocation of driving privileges by a
court for a driver convicted of a violation of traffic laws in
connection with a fatal motor vehicle or commercial motor
vehicle accident; amending Rules 43 and 43.1, Alaska Rules of
Administration; and providing for an effective date."
- HEARD AND HELD
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. 179
"An Act relating to underage drinking and drug offenses; and
providing for an effective date."
- BILL HEARING POSTPONED TO 3/30/01
PREVIOUS ACTION
BILL: HB 52
SHORT TITLE:COMPACT FOR ADULT OFFENDER SUPERVISION
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
01/10/01 0053 (H) READ THE FIRST TIME -
REFERRALS
01/10/01 0053 (H) JUD, FIN
01/10/01 0054 (H) FN1: (COR)
01/10/01 0054 (H) GOVERNOR'S TRANSMITTAL LETTER
02/05/01 (H) JUD AT 1:00 PM CAPITOL 120
02/05/01 (H) Scheduled But Not Heard
02/14/01 (H) JUD AT 1:00 PM CAPITOL 120
02/14/01 (H) Heard & Held
02/14/01 (H) MINUTE(JUD)
03/28/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 40
SHORT TITLE:REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
01/10/01 0045 (H) READ THE FIRST TIME -
REFERRALS
01/10/01 0045 (H) JUD, FIN
01/10/01 0045 (H) FN1: (ADM)
01/10/01 0045 (H) FN2: ZERO(ADM)
01/10/01 0045 (H) FN3: ZERO(LAW)
01/10/01 0045 (H) GOVERNOR'S TRANSMITTAL LETTER
02/26/01 (H) JUD AT 1:00 PM CAPITOL 120
02/26/01 (H) Heard & Held
02/26/01 (H) MINUTE(JUD)
03/28/01 (H) JUD AT 1:00 PM CAPITOL 120
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
02/22/01 (H) MINUTE(TRA)
02/27/01 (H) TRA AT 1:00 PM CAPITOL 17
02/27/01 (H) Moved CSHB 4(TRA) Out of
Committee
02/27/01 (H) 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 (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)
03/21/01 (H) MINUTE(JUD)
03/23/01 (H) JUD AT 1:00 PM CAPITOL 120
03/23/01 (H) Heard & Held
03/23/01 (H) MINUTE(JUD)
03/26/01 (H) JUD AT 1:00 PM CAPITOL 120
03/26/01 (H) Heard & Held
MINUTE(JUD)
03/28/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
CANDACE BROWER, Program Coordinator/Legislative Liaison
Office of the Commissioner
Department of Corrections
431 North Franklin, Suite 203
Juneau, Alaska 99801
POSITION STATEMENT: Testified on HB 52 and answered questions.
During discussion of HB 4, answered questions relating to
proposed amendments to CSHB 4(TRA).
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: During discussion of HB 40, testified in
support and answered questions. During discussion of HB 4,
answered questions relating to proposed amendments to CSHB
4(TRA).
MARY MARSHBURN, Director
Division of Motor Vehicles
Department of Administration
3300B Fairbanks Street
Anchorage, Alaska 99503
POSITION STATEMENT: Answered question relating to HB 40.
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).
JANET SEITZ, Staff
to Representative Norman Rokeberg
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: Answered questions relating to proposed
amendments to CSHB 4(TRA).
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).
MARGOT KNUTH, Assistant Attorney General
Office of the Commissioner - Juneau
Department of Corrections
431 North Franklin, Suite 203
Juneau, Alaska 99801
POSITION STATEMENT: During discussion of HB 4, presented
proposed Amendment 17 on behalf of the Criminal Justice Council
(CJC).
BLAIR McCUNE, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: During discussion of HB 4, answered
questions regarding proposed Amendment 18.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
820 West 4th Avenue
Anchorage, Alaska 99501-2005
POSITION STATEMENT: During discussion of HB 4, commented that
proposed Amendment 21 would not have any fiscal impact on the
ACS.
ACTION NARRATIVE
TAPE 01-43, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:07 p.m. Members present at the
call to order were Representatives Rokeberg, Ogan, Coghill,
Meyer, and Berkowitz. Representatives James and Kookesh joined
the meeting as it was in progress.
HB 52 - COMPACT FOR ADULT OFFENDER SUPERVISION
Number 0059
CHAIR ROKEBERG announced the first item of business, HOUSE BILL
NO. 52, "An Act relating to the Interstate Compact for Adult
Offender Supervision and the State Council for Interstate Adult
Offender Supervision; amending Rules 4 and 24, Alaska Rules of
Civil Procedure; and providing for an effective date." [There
had been a full hearing on HB 52 at a previous meeting.]
Number 0073
CANDACE BROWER, Program Coordinator/Legislative Liaison, Office
of the Commissioner, Department of Corrections (DOC), came
forward at the request of Chair Rokeberg and reminded members
that HB 52 proposes a new compact to replace the 1937 interstate
compact; it is intended to promote offender accountability and
to better keep track of offenders across state lines. The
compact is an agreement among states that adopt it, with the
goal of better supervising offenders and protecting victims and
communities.
Number 0171
REPRESENTATIVE OGAN referred to [Article VII of the compact,
beginning on page 12 of HB 52]. He stated his understanding
that this national commission, with representatives appointed
from each state, can have the force of law in states that are
members of this compact. He objected to passage of the bill for
that reason, saying he believes it undermines Alaska's sovereign
powers as a state. He explained that he has a problem with an
entity that isn't defined in the state's constitution having the
ability of essentially making a law, or something with the force
of law, in Alaska. He said he also believes it violates the
Tenth Amendment of the U.S. Constitution.
Number 0371
MS. BROWER replied that if a rule that the commission made is in
opposition to the constitution, [the state] would not have to
follow it. In response to further questions about the review
process and whether [a bylaw under the compact] would have to be
litigated to be proven unconstitutional, Ms. Brower said, "I
don't know that it has to be litigated, no." She explained that
the commission would hire a body to oversee the compact and act
as an arbiter in disputes and problems that arise out of
disagreements between states or a state's having a problem with
the compact. If enough states had a problem with a particular
rule, that rule could be overturned. Ms. Brower added, "If it's
unconstitutional, we could argue that it's unconstitutional.
And if we had a problem with the compact, we could repeal it."
Number 0469
REPRESENTATIVE OGAN countered that the compact takes away what
he considers to be a legislative power and delegates it to a
national [commission], which will have law-making authority in
Alaska that is outside of the state constitution. He said he
objects to that strenuously.
Number 0490
REPRESENTATIVE COGHILL remarked that he agrees with
Representative Ogan, but believes the safeguards are already in
[HB 52]. He asked whether the compact would "cause us to
violate any of our existing laws."
MS. BROWER answered, "I don't believe so." She added, "And if
we have a representative available during the process of
creating the bylaws, we would have representation to ... make
sure that that didn't happen."
REPRESENTATIVE COGHILL asked whether anything that caused
"tension" with Alaskan law would come before [the legislature].
MS. BROWER replied, "This body would receive a report from the
compact, and then, sure, it would come before this body. There
will be representation from the legislation ...."
REPRESENTATIVE COGHILL expressed concern that it could overrule
[the legislature]; however, as far as legislative powers, he
said he agreed with Representative Ogan if it could make policy
that could change Alaskan law before [the legislature] had a
chance to review it.
MS. BROWER replied:
It wouldn't change our law, but ... we would be forced
to comply with the compact, with the contract or
agreement. And if there was a problem with that, ...
there are ways that we can deal with that, and part of
that is through the compact.
Number 0580
REPRESENTATIVE BERKOWITZ made a motion to report HB 52 from
committee with the attached fiscal note.
CHAIR ROKEBERG pointed out that there is a new, lower fiscal
note.
Number 0608
REPRESENTATIVE OGAN objected. He suggested the legislature
"treads in very dangerous water" when delegating law-making
power to a national organization [through] a compact; he
expressed doubt that members of such an organization would take
an oath to defend Alaska's constitution, as Alaskan legislators
do. Noting that the constitution lays out a clearly defined
process, Representative Ogan said he believes the intent of the
legislation is good and honorable, but on principle, the more
powers that [the legislature] delegates to others, the more
"we're on a slippery slope to a tyranny."
Number 0675
REPRESENTATIVE BERKOWITZ replied:
This is a contract. If the constitution is so weak
that it can't uphold the state's rights in any
contractual negotiation, then we oughtn't be a state
at all. I think the constitution is strong enough to
safeguard our liberties. His fears of tyranny, I
think, it's less of treading in deep water than wading
in a shallow pond.
REPRESENTATIVE BERKOWITZ renewed his motion to report the bill
from committee.
Number 0707
CHAIR ROKEBERG explained his reasons for supporting the bill.
He said the U.S. Constitution explicitly calls for the right of
states to enter into compacts. While he can appreciate
Representative Ogan's concern, philosophically, about granting
powers to a body via contract, Chair Rokeberg said Ms. Brower
makes an excellent point that representation in that rulemaking
process is a safeguard "and one we should participate in." He
said he doesn't agree with the argument on the fundamental
constitutional and philosophical rights, but does agree with
Representative Ogan on the need to safeguard rights. He
suggested there is an overwhelming need for this legislation in
order for Alaska to participate in "interstate trafficking of
paroled prisoners and the supervision of those adult offenders."
Number 0786
REPRESENTATIVE JAMES asked about the length of the contract and
how many states are involved.
MS. BROWER answered, "To be ratified, there have to be 35
states."
REPRESENTATIVE BERKOWITZ added that the existing [compact] has
been in effect since the 1930s.
REPRESENTATIVE JAMES expressed concern that out of 50 states, 15
states [may not] want it, but may be affected. She asked
whether a state that disagrees will be a part of it anyway.
MS. BROWER said no.
Number 0911
REPRESENTATIVE OGAN reiterated his objection, saying it might be
legal and constitutional, but that it is a bad policy call,
giving the compact the ability to make laws in Alaska.
REPRESENTATIVE BERKOWITZ replied, "If the people are comfortable
with us making laws, they ought to be comfortable with this
organization."
CHAIR ROKEBERG said he doesn't necessarily agree with that.
There is clearly the constitutional right and the responsibility
to enter into this compact.
Number 0970
REPRESENTATIVE JAMES referred to the comment by Representative
Berkowitz; she suggested the general public doesn't buy into
what the legislature does, and said the consequences of
legislation aren't even known until laws are passed and
legislators hear from the people who are adversely affected.
She said giving up that right is, to her, a little distressing.
Although she wouldn't commit to future actions regarding the
bill, Representative James said she would object that day.
A roll call vote was taken. Representatives Meyer, Berkowitz,
Kookesh, and Rokeberg voted to report HB 52 out of committee.
Representatives Coghill, James, and Ogan voted against it.
Therefore, HB 52 was reported from the House Judiciary Standing
Committee by a vote of 4-3.
HB 40 - REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT
Number 1048
CHAIR ROKEBERG announced the next item of business, HOUSE BILL
NO. 40, "An Act providing for the revocation of driving
privileges by a court for a driver convicted of a violation of
traffic laws in connection with a fatal motor vehicle or
commercial motor vehicle accident; amending Rules 43 and 43.1,
Alaska Rules of Administration; and providing for an effective
date". [There had been a full hearing on HB 40 at an earlier
meeting.]
Number 1056
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), came forward at the request of Chair Rokeberg, reminding
members that HB 40 closes a gap in current law: it provides
that if the driver in a fatal accident has committed a traffic
violation that doesn't rise to the level of a crime, the
person's driver's license would be revoked for a year if his or
her driving had contributed to the accident. Mr. Guaneli said
these occur a "handful of times a year" when someone falls
asleep at the wheel, for example, or is driving too fast for the
conditions; he cited an example from previous testimony. He
said it is an appropriate law, and the department recommends
[its passage].
Number 1166
REPRESENTATIVE COGHILL asked whether [the license revocation] is
a possibility now, within the discretion of the judge.
MR. GUANELI answered that most violations for which this arises
don't carry the possibility of a court revocation under the
statutes.
Number 1201
REPRESENTATIVE BERKOWITZ pointed out that [Section 2] allows the
court to make a finding based on a preponderance of evidence.
He asked what happens if there is pending civil or criminal
litigation at the same time.
MR. GUANELI responded that he thinks this assumes that there is
no pending criminal action - such as for criminally negligent
homicide or manslaughter - because ordinarily these offenses
fall below that threshold. However, often there may be civil
litigation pending; the driver will have to choose whether to
defend this action or put all of his or her "cards" into the
civil action.
Number 1261
REPRESENTATIVE BERKOWITZ pointed out a disparity: in defending
against a traffic action, one goes in front of a magistrate; in
defending against a civil action, one goes in front of a jury.
He suggested there ought to be some way of at least deferring
the prosecution of the traffic action, in light of a potentially
much more serious civil action.
MR. GUANELI responded that he thinks there is always balancing
to be done when laws are changed. The state's interest is in
getting bad drivers who have caused a fatal accident off the
road, without waiting two or three years for any civil
litigation to conclude. He again suggested that people are
going to have to make a choice.
Number 1314
REPRESENTATIVE OGAN asked whether there is any danger of this
being a lesser included offense in some felony cases.
MR. GUANELI acknowledged that it may have been a problem with
prior bills "where we tried to work out some sort of civil
negligence standards for criminal cases," but said he doesn't
believe it will come into play here.
Number 1340
CHAIR ROKEBERG referred to a letter in packets from David S.
Carter, Esq. [dated February 26, 2001, and received after Mr.
Carter testified that day], which spoke about a ruling in Scott
v. Robinson regarding civil cases. Chair Rokeberg paraphrased
from the following portion of the letter: "the proposed
legislation should include language which indicates that any
findings made by the court pursuant to proposed [Section
28.15.182] may not be used in evidence in a civil action arising
out of the accident."
MR. GUANELI responded that he doesn't believe there is any
particular problem with the idea proposed by Mr. Carter; in
fact, it would take care of Representative Berkowitz's issue.
Mr. Guaneli said he believes it is appropriate to leave the
perhaps more serious financial consequences to a civil jury, and
not have this determination made by a magistrate, based on a
preponderance of the evidence, to be used later against someone
in a civil proceeding.
Number 1413
REPRESENTATIVE BERKOWITZ agreed, noting that he hadn't seen the
letter prior to the meeting. He said if there is a solution to
the problem, this would seem fitting.
CHAIR ROKEBERG asked whether it is a problem.
REPRESENTATIVE BERKOWITZ answered that based on his own
experience, he thinks it would be a problem.
MR. GUANELI recalled that Mr. Carter's testimony was that he
wasn't sure whether, in fact, the decision by the magistrate
based on a preponderance of the evidence could be used at a
later civil trial to establish civil liability; Mr. Guaneli
agreed, saying he wasn't sure that would be the legal result
either. However, there might have been a stipulation and a very
quick hearing; Mr. Guaneli indicated he agreed with Mr. Carter
that the decision by the magistrate shouldn't be used against
someone in a later proceeding. He suggested perhaps it could be
accomplished through a conceptual amendment.
Number 1476
CHAIR ROKEBERG offered his understanding that the basic rule of
law is that a criminal conviction can be used as evidence in a
civil action to prove negligence and so forth.
MR. GUANELI agreed it is the general rule. He said the
difference here is that it involves a finding, based on a
preponderance of the evidence, not only that the person operated
the vehicle, but that there was some factor contributing to or
causing the death of the other person. That finding isn't
necessary to resolve the traffic citation for crossing the
centerline, for example. Therefore, this additional finding,
which is the justification for taking the license away, could
potentially be used in a civil action; however, because it isn't
essential to the traffic citation, it might not be.
MR. GUANELI suggested the court will have to look at the
interests at stake for the individual and whether the person had
enough at issue in the traffic citation to really put on a full
case. He suggested that if a person had an incentive to put on
a full case and litigate this, then he believes the court would
say that the determination by the judge could be used against
the person later. He suggested it will depend on how these play
out, and on how the court assesses this, and will be subject to
litigation. He concluded that it is probably "cleaner" to clear
it up and have a provision, as Mr. Carter has indicated, that
would resolve the issue once and for all.
Number 1579
REPRESENTATIVE JAMES surmised that perhaps the bill came from
her own district, where she'd spoken with someone who had lost a
family member in an accident and was distressed because the
person had continued to drive. She indicated she'd searched but
couldn't find anything that she thought would be applied fairly.
REPRESENTATIVE JAMES also expressed concern that someone driving
on ice, for example, might spin the car 180 degrees while
driving "carefully" on the highway; someone who happens to be
there might get killed, yet nothing bad might happen if nobody
else was around. She said she couldn't find a comparison
between [the action and the possible result]. For this bill,
someone whose action resulted in someone else's being killed
would lose his or her license. She said it doesn't seem like a
severe punishment, but in her district, where people travel a
long distance to work, it could be a real problem; she asked
whether such a person could get a special license to go back to
work.
REPRESENTATIVE JAMES expressed further concern that the bill
seems intended to make people [who have lost a loved one] feel
better; she questioned that as a reason for legislation. She
also restated her concern that there might be some unfair
results. She then recounted how her own father's failure to
yield while driving resulted in the death of the wife of the
other driver, who was traveling at a high rate of speed;
although her father received a small fine, she indicated his
[psychological] punishment was lifelong. She said she isn't
convinced that taking one's license away for a year will solve
the other problems that the person has. She concluded by
emphasizing her mixed emotions regarding the issue.
Number 1775
MR. GUANELI replied that this bill resulted from complaints
received by the governor's office from a number of families of
victims who died in those circumstances, in Representative
James' district as well as others. He noted that at the last
hearing Representative Ogan had mentioned some families [that he
knew of]. Mr. Guaneli suggested it affects many people.
MR. GUANELI pointed out that [HB 40] has a provision that allows
the court to grant a limited license for the purpose of getting
back and forth to work during the entire period of revocation;
it is unlike other revocations in which, for at least some
period of time, the person is without the license at all. He
agreed there is a limit to how much can be done; for the precise
offense of driving over the centerline or too fast for
conditions, he asked, "How much do we want to do to that
person?" He stated:
I think ... our feeling was that where a judge has
made a determination that beyond a reasonable doubt
you've committed this violation, and then makes a
further finding that, as a result of that, somebody
died, it's not just a matter of making a victim's
family feel better - which I think it also will do -
but I think that there is a close enough connection to
driving. And whether it's ... bad driving or bad
judgment in exercising when to drive and how fast to
drive, I think there's a close enough connection to
driving that ... revoking a license for a period of
time is an appropriate sanction.
Number 1870
REPRESENTATIVE JAMES expressed concern that if the judge found
out there was some [driving] error and someone had died, the
trigger would be that somebody had died. She said she wouldn't
have a problem with [the bill] if she could be convinced that
the mistake [itself] was severe enough and neglectful enough [to
warrant a revoked license].
MR. GUANELI explained that the bill specifies that the judge has
to find that the violation of the traffic laws - crossing of the
centerline, falling asleep, or traveling too fast - contributed
to the accident. He suggested that if it were the sole cause of
the accident, it would be difficult to prove that any person's
actions were the only cause of an accident. However, the
language "contributed to the accident" means the [driver] had
some contributory role to the accident, which gives the
connection to driving that justifies the license revocation.
MR. GUANELI first said other language could be looked at, then
restated that the judge had to make this finding, and suggested
that the good faith of the judicial branch would have to be
relied upon to make it in appropriate cases. He said he'd heard
that these kinds of situations arise half a dozen times a year,
and there isn't an expectation of more. However, they are
serious cases, and something needs to be done.
Number 1962
REPRESENTATIVE OGAN expressed support for the bill, telling
members that two of his best friends' children - Teddy
Richardson and Micah Campbell - had died because of this exact
situation. The person who killed these two people wasn't
culpable for anything other than violating a traffic law, he
noted, and the sentence was miniscule because there were no
aggravating factors such as alcohol. He stated his belief that
[HB 40] is a few years too late.
Number 2038
REPRESENTATIVE MEYER requested assurance that if somebody makes
a judgment error, somehow [the state] will work with that person
so that he or she doesn't just get the license back and do it
again.
Number 2065
MARY MARSHBURN, Director, Division of Motor Vehicles (DMV),
Department of Administration, answered via teleconference that
when someone's license is revoked, the person must take the
written knowledge test again in order to have it reinstated;
that covers traffic laws and behavior. In addition, the person
must pay reinstatement fees and any requirements for high-risk
insurance. In terms of addressing specific behavior such as
spinning 180 degrees while driving, however, [the DMV] doesn't
look at that.
REPRESENTATIVE MEYER said he would like it to go a little
further; if someone has a problem with driving-behavior
patterns, taking a written test won't correct it per se. On the
other hand, it can't be proven that people will no longer spin
180 degrees in the middle of the road, he acknowledged.
Number 2126
REPRESENTATIVE BERKOWITZ offered an amendment on [page 2] lines
20 and 23, following "livelihood", to add "or provide care to
another". Thus lines 21-23 would read:
(1) the person's ability to earn a livelihood or
provide care to another would be severely impaired
without a limited license; and
(2) limitation can be placed on the license that
will enable the person to drive without danger to the
public in order to earn a livelihood or provide care
to another
REPRESENTATIVE BERKOWITZ explained that someone could be a care
provider and therefore need to drive.
Number 2173
REPRESENTATIVE OGAN objected, saying it is ambiguous. For
example, he cares for his own wife, or a teenager might care for
his girlfriend. Furthermore, he questioned whether "care" means
emotional or physical care, for example. He suggested lawyers
would come up with "a million reasons" why somebody cares for
someone else, which would basically gut the bill.
Number 2193
REPRESENTATIVE MEYER asked Representative Berkowitz whether the
intent is to address the situation of someone who has to take
care of a handicapped, disabled, or elderly person and would
therefore need to drive in order to take care of that person.
REPRESENTATIVE BERKOWITZ affirmed that.
REPRESENTATIVE MEYER suggested maybe there is a way to [make it
less broad].
Number 2220
REPRESENTATIVE OGAN asked whether Representative Berkowitz would
consider a friendly amendment such as "care for someone that is
disabled", in which case he wouldn't object.
Number 2235
REPRESENTATIVE JAMES responded that "disabled" is a pretty broad
term. She asked, however, about someone who has to take a child
or parent to the doctor. She said she tended to agree with
Representative Berkowitz's concern, but suggested that a better
term was required.
Number 2261
REPRESENTATIVE BERKOWITZ pointed out that in the event of
earning a livelihood, the person would still need to present
evidence to the court. He said he understands Representative
Ogan's concern that people care for one another all the time.
CHAIR ROKEBERG asked about [the term] "long-term caregiver."
REPRESENTATIVE JAMES proposed dependency on the person [as a
criterion].
REPRESENTATIVE BERKOWITZ said he was willing to have assistance
with crafting the phrase.
Number 2279
MR. GUANELI told members he thought he had the sense of where
they were going with this amendment, as well as with the issue
raised by Representative Berkowitz and Mr. Carter. He offered
to draft amendments to bring before the committee at the next
hearing.
Number 2305
CHAIR ROKEBERG announced HB 40 would be set aside in order to
wait for a proposed committee substitute (CS) or amendments.
[HB 40 was held over.]
HB 4 - OMNIBUS DRUNK DRIVING AMENDMENTS
[During discussion of Amendment 15, contains some discussion of
HB 172.]
Number 2318
CHAIR ROKEBERG announced the final item of business would be to
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.]
CHAIR ROKEBERG informed the committee that there are now 38
amendments. The committee left off with Amendments 13A and 13B
at the last hearing. These amendments deal with the inhalant
issue and whether the name DUI (driving while under the
influence) would be changed [in CSHB 4(TRA)] to DWI (driving
while intoxicated) or the bill would stay with DUI and add the
word inhalant. Chair Rokeberg announced that he would not offer
Amendment 13A.
Number 2366
CHAIR ROKEBERG moved that the committee adopt Amendment 13B [22-
LS0046\S.14, Ford, 3/23/01]. [Amendment 13B is provided at the
end of the minutes on HB 4.]
REPRESENTATIVE MEYER objected for the purpose of discussion.
CHAIR ROKEBERG explained that he wants to keep the DUI change of
definition and nomenclature [so that] the public will know that
there is a change to the law that they should be aware of.
[Amendment 13B] more accurately reflects the definition of what
is considered driving under the influence versus driving while
intoxicated.
TAPE 01-43, SIDE B
Number 2466
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), reiterated his testimony from a prior hearing that the
title of the bill has no legal effect, although if [the title]
becomes too long, it would affect the readability of the
statute. However, he suggested that the committee may want to
consider calling the crime "driving while under the influence"
and defining "influence" or "under the influence" to mean under
the influence of alcoholic beverages, inhalants, or controlled
substances.
CHAIR ROKEBERG interjected, "We tried that."
Number 2439
MIKE FORD, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency,
remarked that this law has some peculiarities. He referred to
AS 28.35.030, which addresses operating a vehicle, aircraft, or
watercraft while intoxicated. However, that statute also
includes controlled substances. He asked, "Now, is that
intoxication? I don't know." Therefore, he recommended
reviewing the progression of the law, which began with
intoxication and to which things such as inhalants were added.
This law has been changed to mirror current thinking. Mr. Ford
acknowledged that Mr. Guaneli's suggestion could be pursued.
However, he offered the name of "driving while impaired" because
that is what is being discussed.
CHAIR ROKEBERG pointed out that there is already an impairment
statute that would have to be changed, which would make it
difficult for an officer to make it work.
MR. FORD specified that his point is that it could be defined to
be a number of things. He said, "For purposes of the rest of
the statutes, 'driving while impaired in violation of' would be
fairly simple and easy to understand."
Number 2396
MR. FORD, in response to a statement by Chair Rokeberg,
clarified that the options before the committee are to return to
use of the word "intoxicated" and amend [AS 28.35].030 in a
manner that includes inhalants or to add inhalants to the list
and change the language such that one would be under the
influence of A, B, C, or D. However, Mr. Ford said that he is
suggesting a third option with the use of "driving while
impaired" and forgetting [the specific list of items] except
under [AS 28.35].030.
CHAIR ROKEBERG asked, "Well, how about under the influence under
[AS 28.35].030?"
MR. FORD answered, "Well, but influence of what? It's not
influence, it's impairment ... I'm suggesting as the issue."
CHAIR ROKEBERG reiterated that the impairment statutes would
have to be changed.
MR. FORD said that if Chair Rokeberg is referring to driving
under the influence of intoxicating liquor, that is found in [AS
28.35].030. Mr. Ford said that his suggestion is a way to look
to the future because there may be more items that are
prohibited.
Number 2318
REPRESENTATIVE JAMES asked if, under existing statutes,
impairment can be [charged] if the individual has a [blood
alcohol concentration (BAC)] of .05.
MR. FORD agreed that is an example of impairment.
CHAIR ROKEBERG mentioned that many arrests in Anchorage are made
under the impairment statute.
REPRESENTATIVE JAMES remarked that the only reason to go to .08
is that it provides another "hammer" in the determination of the
guilt as opposed to being stopped for erratic driving.
CHAIR ROKEBERG asked if Mr. Ford could offer another word
besides impairment.
MR. FORD pointed out that under [AS 28.35].030 as it reads now,
one would not have to pass that threshold in order to be
convicted of this offense. An individual can be convicted
simply by being under the influence of intoxicating liquor
regardless of whether the individual's [BAC] reaches .10. That
is merely one example. Therefore, Mr. Ford clarified that he is
suggesting that if an impairment standard is used, then a number
of examples can be used. He reiterated that use of "under the
influence" begs the question.
Number 2228
REPRESENTATIVE BERKOWITZ mentioned that he has prosecuted and
defended using these terms and thus he respectfully disagreed
with Mr. Ford. He said, "Semantically, what you're saying [is],
'Well, if you're driving while impaired, the defense essentially
is going to be: "Yes, I had some, but I was not impaired"'. If
[you're talking] about driving while under the influence, it's
not as easy a threshold to convey to a jury." Representative
Berkowitz said that impairment is more of a subjective
determination, while people can be influenced without being
impaired, which is what he believes [the committee] is
attempting to address.
CHAIR ROKEBERG related his belief that impairment is a synonym
for tipsy, or not quite intoxicated, or under the influence.
Furthermore, there are the gradations of how inebriated one is
according to weight or blood alcohol [concentration].
MR. FORD interjected, "What I'm suggesting is that's exactly
what you use; it's the same [thing]." He specified that it
would be driving while impaired from intoxicating liquor or a
controlled substance, and there would still be the threshold,
the per se defense, and inhalants or any number of things could
be added in order to specify that those things trigger the
standard.
CHAIR ROKEBERG noted his agreement with Representative
Berkowitz.
REPRESENTATIVE BERKOWITZ turned to Representative James'
comments. He explained that currently if someone comes in at
under .08, it is essentially a guaranteed acquittal because
jurors view that as a break point. When people are charged,
they are charged dually for being over the limit and for being
impaired.
MR. FORD clarified that he was not proposing a change in the
standard as much as he was proposing a change in the description
of the standard.
CHAIR ROKEBERG said that is problematic. He expressed his
desire to keep this legislation as simple as possible and to
change the name [of the offense] so that people understand.
Number 2069
REPRESENTATIVE MEYER removed his objection to Amendment 13B.
CHAIR ROKEBERG announced that Amendment 13B was adopted.
Number 2056
CHAIR ROKEBERG moved that the committee adopt Amendment 14 [22-
LS0046\S.20, Ford, 3/23/01]. [Amendment 14 is provided at the
end of the minutes on HB 4.]
Number 2052
JANET SEITZ, Staff to Representative Norman Rokeberg, Alaska
State Legislature, explained that Amendment 14 provides the
Department of Public Safety (DPS) with some options to dispose
of forfeited property.
REPRESENTATIVE BERKOWITZ posed a situation in which a trooper
would seize a vehicle, which would then be sold at auction. He
asked if there are any existing state agencies that dispose of
property.
MS. SEITZ recalled that the Department of Administration (DOA)
has a surplus section for state office equipment and the like.
REPRESENTATIVE BERKOWITZ clarified that he is concerned that the
DPS will have to do something that it isn't currently set up to
do when another state department already has that ability.
MS. SEITZ related her belief that Amendment 14 affords the DPS a
bit more latitude. For example, if the department has a vehicle
in a rural area, it allows for transference of title at that
location rather than requiring the vehicle to be moved and then
declared surplus and then transferred [back to its original
location]. She pointed out that paragraph 3 of Amendment 14
allows for the [vehicle] to be declared surplus and transferred
to the Department of Administration, which could then go through
its surplus process. However, [Amendment 14] also provides the
option of selling [the vehicle], transferring it to a state or
municipal law enforcement agency, or destroying it.
Number 1957
REPRESENTATIVE JAMES said it appears that the current statute
already affords the option [encompassed in Amendment 14] because
the current statute says, "discretion of the Department of
Public Safety." Furthermore, Amendment 14 includes the
following language: "Disposal under this subsection includes,
by way of example and not of limitation,". She asked if there
are separate regulations that indicate that such an option is
not available.
CHAIR ROKEBERG recalled that Amendment 14 arose from discussion
he had with Lieutenant Dunnagan regarding a suggestion of
flexibility with disposition and disposal. He asked if there
are existing regulations in the DPS for this type of disposal.
ALVIA "STEVE" DUNNAGAN, Lieutenant, Division of Alaska State
Troopers, Department of Public Safety (DPS), testified via
teleconference and replied that he wasn't aware of any. If the
DPS had a vehicle that would not be given to a government agency
or taken for use amongst the department, then the vehicle would
be turned over to the Department of Transportation & Public
Facilities (DOT&PF), where it would proceed through the sale by
the DOA. The Department of Administration would charge a 5
percent sales [tax] for handling the sale of the vehicle. This
is the current process.
LIEUTENANT DUNNAGAN related his belief that Chair Rokeberg was
referring to a discussion the two had when Lieutenant Dunnagan
was trying to make the fiscal note as reasonable as possible.
The current statute includes discretionary power to dispose of
vehicles as the department sees fit. Therefore, the desire in
rural areas was to give the vehicles to the Village Public
Safety Officers (VPSO) or a city government in an attempt to
reduce the cost incurred by the DPS for shipping and storage of
impounded vehicles from the outlying areas.
CHAIR ROKEBERG said that the committee agreed with Lieutenant
Dunnagan that such flexibility should be available.
MS. SEITZ explained that the DPS felt more comfortable with
something specific in statute rather than the general language,
"disposed of at the discretion of the Department of Public
Safety" that already exists. This amendment was developed with
the cooperation of the department.
CHAIR ROKEBERG inquired as to [the department's ability] to give
the vehicle to a charitable organization.
MR. FORD informed the committee that [the vehicle], as state
property, can't merely be given away.
Number 1785
REPRESENTATIVE JAMES noted her concern with that aspect because
sometimes disposing of property costs more than the value of the
property. She suggested that the statute should specify that
the department be allowed to dispose of property in the most
economical manner. Representative James expressed concern with
having an inconclusive list of examples that are "not of
limitation". She indicated the need to trust the DPS and
related her trust of them, except when they destroy guns that
could have been sold for money.
CHAIR ROKEBERG acknowledged Representative James' argument and
noted that this is a reaction to the administration's request
for clearer guidance [due] to the fact that there are no
regulations on disposal.
REPRESENTATIVE JAMES remarked that after doing this the
department would write regulations.
LIEUTENANT DUNNAGAN returned to Representative James' reference
to the guns. He noted a discussion he and Mr. Guaneli had
regarding whether the DPS is free to destroy something.
Therefore, he indicated that the committee may want to speak to
Mr. Guaneli.
Number 1640
MR. GUANELI recalled that he was one of the people requesting
some additional statutory guidance beyond the current general
language. He felt that additional guidance was necessary due to
the firearms issue referenced by Representative James. In that
case, the department didn't want to spend the money to determine
whether the firearms were safe and didn't want them returned to
circulation, and therefore the firearms were destroyed. The
department was sued and the legislature passed a statute that
specified what the department should do with such property.
Therefore, he added, he felt the need to have statutory
authority to dispose of items, and thus the list [of examples]
was appropriate. However, he did express the need to include
the ability to give to charities in the list, if the committee
intends for the DPS to be able to give property to a group other
than a government agency. Mr. Guaneli expressed concern in
advising the DPS to simply give away property to an entity other
than a government agency because it might result in another
lawsuit.
REPRESENTATIVE JAMES said that from her practical experience,
discretion involves a process; when one makes a decision, the
reasons for doing so are substantiated by findings of fact in
order to determine whether one could be sued for the particular
action.
MR. GUANELI said he understood Representative James' position.
However, he was unsure as to the type of findings the state
could make to justify simply giving away a valuable car to one
charity versus another charity. Therefore, if that authority is
going to be exercised, Mr. Guaneli expressed his desire to
specify such in statute. Otherwise, he predicted that he would
probably advise the DPS that it's safer to sell the vehicle at
auction, from which the proceeds would be deposited into the
general fund. Mr. Guaneli felt that it would expect much from
the DPS to try to determine findings of fact as to why the
department wanted to transfer a vehicle to a particular charity
instead of another. However, when destroying something,
findings of fact are necessary, he added.
REPRESENTATIVE JAMES said that if she were a DPS official, she
could certainly write down why she chose to give an item to one
charity over another. She emphasized, "There's got to be a
reason." Therefore, she didn't see Mr. Guaneli's fear.
However, she did believe it to be problematic to list giving to
a charity because it is different from the others on the list
and thus she suggested that perhaps charities shouldn't be
listed. In response to Chair Rokeberg, Representative James
said that she would "take it all out ... and leave it like it
was." With regard to the charities, she said she believes that
the current discretionary language allows that.
Number 1383
REPRESENTATIVE OGAN pointed out that currently the state
disposes of property when no one else wants the property.
CHAIR ROKEBERG reiterated that [Amendment 14] is an attempt to
accommodate the administration.
REPRESENTATIVE JAMES announced that she wouldn't vote to destroy
Amendment 14. However, she wanted to make sure that her points
were on the record in case this is [problematic] in the future.
CHAIR ROKEBERG expressed concern that the DPS doesn't feel
strong enough with its discretionary [authority] and is fearful
enough of the legislature to request this statutory language.
Number 1339
REPRESENTATIVE COGHILL restated the earlier question regarding
whether there are any regulations that address this.
CHAIR ROKEBERG recalled that the answer was that the department
doesn't have anything in regulation.
MR. FORD explained that once the vehicle is forfeited it is
property of the state, which can't simply be given away because
the Alaska State Constitution says that things can't be given
away unless they are appropriated.
REPRESENTATIVE JAMES surmised that the department is required to
take these [forfeited] items. However, she said that if
something was going to cost more than it's worth, then she
wouldn't take it.
CHAIR ROKEBERG remarked that the DPS has a responsibility, as
Lieutenant Dunnagan's example pointed out, to pick up highly
damaged vehicles and impound the vehicle, which may have little
or no value. Therefore, the vehicle would have to be disposed
of.
REPRESENTATIVE JAMES related her difficulty in believing that
something of negative value couldn't be given away without it
being an appropriation.
REPRESENTATIVE OGAN recalled that a nonprofit fire department
obtained property from the state, property which he assumed was
available because no one else wanted it.
Number 1164
REPRESENTATIVE BERKOWITZ related his belief that there is a
hierarchy of claim on state property and thus there is a
difference between giving state property to a volunteer fire
department versus a charity. Authorization exists for the fire
department to make a claim; the fire department merely has to
wait for the municipalities and other state agencies to go
first.
REPRESENTATIVE JAMES posed a situation in which the department
had something for which the cost of selling would be excessive.
If a charity wanted that item, she asked, couldn't the charity
pay something for it?
MR. FORD said he thinks that could be done if the disposal
process is followed.
REPRESENTATIVE JAMES removed her objection.
Number 1077
CHAIR ROKEBERG announced that Amendment 14 was adopted.
Number 1045
CHAIR ROKEBERG moved that the committee adopt Amendment 15 [22-
LS0046\S.21, Ford, 3/23/01]. [Amendment 15 is provided at the
end of the minutes on HB 4.]
MS. SEITZ explained that Amendment 15 changes the diversionary
program for the .08 to less than .10 and it lengthens the time
that the court has to advise the Division of Motor Vehicles
(DMV) of a conviction from the end of the following business day
to within five working days. Under Amendment 15, the "diversion
program now includes a person serving 72 consecutive hours of
imprisonment, successfully completing a one-year period of
probation during which they cannot commit any alcohol- or
traffic-related offenses, paying the cost of treatment,
performing 24 hours of community service, [and] paying the fines
imposed by the court."
CHAIR ROKEBERG remarked that the result [of Amendment 15] is to
almost completely eliminate the diversion program, except for
the suspended imposition of sentence. In his opinion, the
suspended imposition has the advantage of offering the first-
time offender who keeps clean and doesn't exceed the .10
standard the ability to keep that [offense] off his/her record.
However, if the offender re-offended, the state would count that
individual's first offense as a prior offense.
REPRESENTATIVE BERKOWITZ said that he still objects. He turned
to the deletion of the following language: "no aggravating
circumstances associated with the acts upon which the conviction
is based". He pointed out that conceivably someone with
aggravating circumstances could be eligible for the suspended
imposition of sentence.
CHAIR ROKEBERG interjected that he didn't believe that was the
intention.
MS. SEITZ remarked that is what Amendment 15 does.
Number 0915
MR. FORD said that there is no element of aggravating
circumstances in the change.
CHAIR ROKEBERG related his belief that if there is an
aggravator, then the individual wouldn't be eligible for the
diversion.
MR. FORD said that isn't correct. Under the proposed language
in Amendment 15, [the individual's eligibility is based on]
whether the individual is within the parameters, .08 to .099.
REPRESENTATIVE BERKOWITZ expressed concern with the .08 to .10
window in a courtroom scenario. He informed the committee that
people often argue over a rising or falling BAC at the time the
test was taken. With such a narrow window and less sanctions,
he indicated that it is an invitation to litigation. Therefore,
he predicted that every low-range BAC would be heavily litigated
in the courtroom because of the aforementioned argument. Once
that occurs, costs rise because there is more court time, law
enforcement time, prosecutor time, expert testimony time, and
defense time. This is a huge cost to the system.
CHAIR ROKEBERG pointed out that according to the fiscal note
from the Department of Corrections, it would only be about a
$28,000 increase. Chair Rokeberg pointed out that Amendment 15
returns the jail time.
REPRESENTATIVE BERKOWITZ reiterated his concern that this
amendment would invite more court time. For example, with the
Exxon Valdez case there was discussion regarding when the BAC
test occurred, that is, the length of time after the incident.
REPRESENTATIVE COGHILL asked if that same problem would exist
even without the window.
REPRESENTATIVE BERKOWITZ replied no and specified that if an
individual is over .08, then that individual is over .08, which
is the current situation with .10.
REPRESENTATIVE COGHILL asked if the discussion would then
revolve around when the BAC test was administered.
Number 0683
REPRESENTATIVE BERKOWITZ answered, "Well, it's when they gave
the test." However, he pointed out that there is also case law
that says that the intoximeter is an instrument and there are
tolerances within that instrument. Furthermore, he said he
believes the case law requires that there must be up to a .01
difference and thus everything must be crafted in favor of the
defendant. Representative Berkowitz surmised that almost every
.10 that has been charged hasn't been charged as a DWI or has
been pled as a reckless driving charge. He explained that the
defense would argue that the BAC is a .10 on the intoximeter,
but because doubt has to be given on the defendant's side, it
would read .09 and thus the individual would be outside the
statutory range.
REPRESENTATIVE JAMES surmised that .08 would face the same
condition. However, if there is a different set of
circumstances for offenders with BAC levels between .08 and .10,
then both issues are problematic. She commented that there
appears to be only a small number of offenders who will fall
into that category, and that the fiscal note only reflects a
difference of $28,000.
CHAIR ROKEBERG clarified that the $28,000 difference depended on
inclusion of the diversion program relating to the three days of
jail time. By putting the jail time back in CSHB 4(TRA), the
fiscal note would be raised by approximately $28,000.
REPRESENTATIVE BERKOWITZ asked how many cases were estimated for
that diversion program.
CHAIR ROKEBERG quantified that the calculations were based on
the 10 percent "plug-number," which he believes is incorrect; he
offered his belief that 5 percent would be a more accurate
number to use in the calculations.
REPRESENTATIVE BERKOWITZ persisted, "5 percent of how many
cases, are we talking about?"
MS. SEITZ relayed that the DOC estimated 413 misdemeanor cases
and then used a calculation of 10 percent of that number.
REPRESENTATIVE BERKOWITZ considered an estimate of 200 cases a
year that could fall under this range. He suggested that that
would result in one motion per day, each of which could last
almost as long as the trial.
CHAIR ROKEBERG noted that this is a two-tiered system against
the [.08] standard. He remarked that the debate was on the
whole diversion program, which includes about half the
amendments.
Number 0443
MR. GUANELI said that [the DOL] has a strong objection to
Amendment 15. He added that [the DOL] thinks that an SIS (a
suspended imposition of sentence whereby someone gets a drunk-
driving conviction taken off his/her record and is again treated
as first-time offender even when he/she commits another offense)
is inappropriate. In adopting .08 as the legal standard, he
offered that the legislature is making a policy decision based
on a lot of good data that shows that people at a .08 BAC level
are under the influence and should not be driving. Reaction
time more than doubles at .08, and for that reason, he suggested
that these offenders ought to be treated the same as other
offenders, if not in terms of the sentence that is imposed, at
least in terms of identifying them as drunk drivers; in this
way, if they continue to commit DWI/DUI offenses they can be
treated appropriately. He added that he could not see any
justification for giving people that kind of a break to
essentially wipe their records clean in all cases.
MR. GUANELI acknowledged that Representative Berkowitz makes
some good points with regard to raising the stakes and making
trials more difficult. He agreed that "they" may very well have
to have a special verdict by the jury to determine whether an
offender was under .10. He noted that a number of issues can be
taken into account and dealt with at the trial level, but he
warned that it raises some aspects of unfairness, for example,
if the intoximeter is not working and thus an individual is not
given the opportunity to "blow into the machine" and prove that
he/she is under .10. He acknowledged that in such a situation
the offender could demand a blood test, but he again argued that
he did not see any justification for wiping the record clean.
He added that he thought part of the purpose of HB 4 was to
identify problem drunk drivers at an early stage by adopting .08
and expanding the look-back provisions for third-time offenders,
all of which would be circumvented by allowing people to wipe
the slate clean.
MR. FORD countered that it is still a prior conviction for
purposes of [AS 28.35].030.
MR. GUANELI remarked that that was not what he was referring to.
REPRESENTATIVE BERKOWITZ added, "If it's a suspended imposition
of sentence, it goes away."
MR. FORD argued that it did constitute a prior conviction under
"this language." Prior conviction includes a conviction in
which a person received an SIS. He added, "If you get a
subsequent conviction, and you fall under this diversion
program, you have committed a second offense for purposes of [AS
28.35].030."
MS. SEITZ clarified that the language Mr. Ford was referring to
is included on page 3 of Amendment 15.
Number 0196
MR. GUANELI acknowledged that he saw that provision, but he
countered that it creates a huge ambiguity because the SIS
statute says that a person gets [the offense] off his/her
record, while language in Amendment 15 says that the person does
not get the offense off his/her record. He surmised that when
the court weighed the language between the two different
statutes, it would resolve the ambiguity in favor of the
defendant; thus, as Amendment 15 is currently drafted, the
offense is going to come off the offender's record. He also
explained that if the offense does not come off a person's
record, then it is not considered an SIS because that is the
effect of an SIS - the offense comes off a person's record. "We
either do it or we don't do it; we can't say we're giving them
an SIS, but then don't give them the legal effect of an SIS," he
concluded.
MR. FORD said he did not agree with that interpretation; the
legislature can certainly craft a provision that provides
different treatment, and has done so in this case. If the
legislature wants to provide that there are consequences for a
subsequent conviction, but the person could, in fact, still be
allowed to receive certain benefits if he/she falls within a
certain class, it can do so.
REPRESENTATIVE JAMES asked whether, in going to .08, the
position of the legislature or intended position of the
legislature, is that it will not simply move from .10 to .08 to
determine when impairment is severe. In the alternative, she
asked if the legislature is intending to phase in the change by
taking this one little group of people who fall within .08 to
.10 and treating them differently. She opined, "If we're going
to just move the ladder down, we ought to just leave it the same
as it [is] currently." She asked what the rational was for
"sort of doing it, but not totally doing it."
CHAIR ROKEBERG explained that it came, in part, from his
drafting and the recommendations of other people; there was a
belief that the chances of passing the .08 standard would be
improved by enacting a diversion program along with the .08
standard. He added that the diversion program was crafted so
that it only applied to a very narrow group.
TAPE 01-44, SIDE A
Number 0001
CHAIR ROKEBERG offered that currently 80 percent of first-time
offenders who are subjected to evaluation and potential
treatment, and who also do the jail time, get the message, in
part, and don't re-offend. He agreed that they were lowering
the standards, and he suggested that offenders who "may have had
one too many, and break over that barrier," but who also comply
with all the provisions of the stringent diversion program,
should be allowed to keep the offense off their record.
REPRESENTATIVE BERKOWITZ, to turn the argument around, suggested
that if that were the case, why not allow [the diversion
program] now for people who have a .15 BAC level, for example.
CHAIR ROKEBERG answered that it was because they were attempting
to change public policy; a BAC of .08 constituted a change of 20
percent in the impairment standard, and the diversion program
was created in recognition of that change.
REPRESENTATIVE JAMES said there were also statistics that showed
that by the time a person gets stopped for a DWI, that person
has already committed the offense a number of times. She then
referred to the statistics that said 80 percent of first-time
offenders (with a BAC of .10) do not re-offend when they are
caught that first time. She suggested that whether the BAC
standard is .08 or .10, the same statistics will probably apply;
thus she did not see why those offenders should be treated
differently. She acknowledged, however, that she could see that
by adding the diversion program, HB 4 might get more votes for
passage.
CHAIR ROKEBERG said that there is a bit of political reality
involved. He said he thought that the success of HB 4 in its
entirety, particularly with the .08 provision, hinged upon the
diversion program.
Number 0219
REPRESENTATIVE BERKOWITZ, notwithstanding the potential for "a
scrap" when making a policy choice, said he agreed with
Representative James that the real issue that the legislature
has to come to grips with in HB 4 is whether to lower the BAC to
.08 or not. He then offered that when both the Majority Leader
and Minority Leader agree on something, everyone else should pay
attention. He said that they could "play around" between the
.08 and the .10, but that's not reaching the heart of the
decision. He suggested that the best way for the legislature to
show a judgment would be to vote the .08 provision either up or
down; by offering a middle ground, he said he thought they would
be giving away something that they did not need to. He opined
that, tactical considerations aside, when the time came to vote
for a .08 BAC standard, [the legislature] would vote for it.
REPRESENTATIVE COGHILL said that he thought the diversion
program was working towards trying to find a way to keep people,
especially first-time offenders, from driving drunk, which was
the whole point behind the .08 discussion. He said he did not
know whether "the window" (.08 to .10) was really the place to
attempt it, or if the diversion program should simply start at
.08 BAC level. He referred to the experimental courts (wellness
court, "mental health court," and "alcohol court"), which try to
hold a sentence over somebody in an attempt to get him/her to
stop drinking. If using the window creates legal problems,
perhaps the current laws should simply be applied to a .08
standard, he suggested. He said he was looking for ways that
would allow the court the discretion of the diversion program.
He added that he understood the discussion surrounding the SIS,
but he suggested that the whole concept of the diversion program
was up for discussion.
CHAIR ROKEBERG agreed that the debate surrounding the diversion
program was very valuable and would be ongoing. He commented
that they were trying to at least offer "the carrot and the
stick element" with the diversion program. If that small number
of individuals who enter into the program complete the program,
they get the rewards of the program, and if they don't complete
it, then they will be treated like anybody else, he added.
Number 0461
REPRESENTATIVE BERKOWITZ offered that one of the primary reasons
to have criminal laws is to deter people from behavior, and if
"we pull punches" by creating this window between .08 and .10,
the deterrent value of a [BAC] reduction will be significantly
undercut, and it will be very hard to gauge what the impact is.
Plus, he continued, it doesn't do as much as "we" can do, and
with regard to this whole debate about alcohol, "we" need to, at
some point, aggressively move against it; "we" don't need to be
tentative, "we" know it creates a problem out there - "we" know
the roads are unsafe.
CHAIR ROKEBERG asked if Representative Berkowitz was suggesting
that the totality of CSHB 4(TRA) is being tentative.
REPRESENTATIVE BERKOWITZ responded, "What I'm suggesting is, if
we're going to go down to a .08, let's go down to a .08. Let's
make it apply equally to everybody."
REPRESENTATIVE MEYER said he agreed with some of Representative
James' earlier comments that it makes no difference going from
.10 to .08; just do it without the window. He said he thought
they were destined to go to .08, whether it is done now or done
four years from now, coupled with the risk of losing federal
funds. He said he would just as soon go ahead and "make the
break" and go to .08, right now.
REPRESENTATIVE JAMES acknowledged that there was some merit to
allowing people to participate in a diversion program on their
first offense, but she said she did not think it should be done
only on the basis of having a BAC between .08 and .10. Already,
80 percent of first-time offenders don't re-offend, and fairness
should be considered during the move to a .08 impairment
standard, she added; those individuals should be treated the
same as other individuals who are impaired. And while she would
be voting for Amendment 15, she said she would prefer to see the
diversion program made available to all first-time offenders
unless they also had also committed other offenses such as
causing accidents or fatalities.
CHAIR ROKEBERG commented that that was certainly his philosophy,
and that other states have used the diversion program. He added
that while the diversion program gives some people in "the
industry" some comfort, the organization MADD (Mothers Against
Drunk Driving) does not approve of it; thus the proper way to
approach a diversion program constitutes a balancing act. He
said that he simply believed that those first-time offenders of
a new standard should be able to enter into a program, pay their
fines, receive treatment, and then be allowed to have "the
carrot" of SIS, particularly since, as Mr. Ford says, Amendment
15 is drafted so that a second conviction would be treated as
such. And if the language needs to be tightened up to ensure
that, he acknowledged that they should do so.
Number 0760
REPRESENTATIVE BERKOWITZ said if that is the case and the
concern is to give first-time offenders a second chance, then
there should not be an upward cap of .10. Anyone who is a
first-time offender, from .08 and up, should be able "to get a
fair bite of this, but, if we try and draw that window, that's
not fair."
CHAIR ROKEBERG explained that in tandem with the therapeutic
court legislation [HB 172], the goal was to get more people into
treatment, and that HB 4 should have as an end result more
emphasis on treatment. He added that the original intent of HB
4 was to get the habitual drunk driver off the street (and not
so much hit the first-time offenders); however, because the .08
standard is something that this legislature needs to speak to,
it has been included. He said his proposal is to adopt a
therapeutic-treatment-element type of approach for first-time
offenders.
REPRESENTATIVE JAMES expressed the concern that there were
numerous offenders who were not being caught. She said she
thought that the penalty given to first-time offenders would
"shape them up." She noted that the diversion program should be
available to everyone, and that perhaps offenders with a higher
BAC level have a greater need for diversion. She said it seemed
to her, on the issue of lowering the standard to .08, that they
should simply go to .08 and have creation of a diversion program
be a separate issue. She added that she was in favor of the
diversion program, but it should be made available to all first-
time offenders, rather than tied to .08.
REPRESENTATIVE BERKOWITZ noted his agreement with Representative
James.
REPRESENTATIVE OGAN noted that one of the best diversions is
when a first-time offender gets the bill for the SR22 (special
risk premium insurance).
REPRESENTATIVE COGHILL noted that the recent discussion did not,
for the most part, pertain to Amendment 15, and thus the issues
surrounding the diversion program would have to be revisited.
CHAIR ROKEBERG suggested that by having the discussion now, the
committee could move along more expeditiously.
REPRESENTATIVE BERKOWITZ, on Amendment 15, noted again that the
effect would be to remove the aggravator provision as preclusion
from the diversion program; thus a person would merely have to
have a BAC between .08 and .10 to get into the diversionary
program regardless of any aggravating circumstances.
Number 1010
CHAIR ROKEBERG made a motion to amend Amendment 15 "to put the
aggravators back in."
REPRESENTATIVE BERKOWITZ suggested that this could be
accomplished by changing "shall" to "may" on page 2, line 21, of
Amendment 15. Currently, Amendment 15 mandates that the court
"shall" suspend imposition of sentence, he added.
CHAIR ROKEBERG pointed out that the suspended imposition of
sentence (SIS) is all the diversion program has left with the
adoption of Amendment 15 (as amended with regard to the
aggravators). He took the position that the SIS from a first
offense would count, should there be a second offense.
REPRESENTATIVE JAMES noted that taking out "not more than .10"
would make the diversion program available to everybody.
CHAIR ROKEBERG said that would then mean every first-time
offender.
REPRESENTATIVE JAMES confirmed that.
CHAIR ROKEBERG qualified, "Even if they had a .20 [BAC]."
REPRESENTATIVE JAMES asked if his concern is that it is too
expensive to give all first-time offenders an opportunity to
have diversion.
CHAIR ROKEBERG agreed that that was correct should the diversion
program be made "open-ended," and he added that he would rather
put the money elsewhere in treatment. It is a balancing act, he
noted, and the diversion program in [Amendment 15] has a cheap
price, even if the three-day jail time were to but back in for
an additional $28,000. He also noted that law enforcement and
other interested individuals would be a lot happier having the
three-day jail time for first-time offenders included in HB 4
(via Amendment 15). Therefore, the only issue remaining
regarding Amendment 15 is the SIS and whether the district court
judge should have the ability to put the offender in a diversion
program. It brings the therapeutic court element into all
district courts in the state for just that limited number of
offenders [who fall within .08 and .10].
REPRESENTATIVE JAMES asked what the cost of the diversion
program would be, per person.
CHAIR ROKEBERG noted that the DOC estimated an additional
$28,000 for the diversion program, and $88/person a day at a CRC
(Community Residential Center).
Number 1207
CANDACE BROWER, Program Coordinator/Legislative Liaison, Office
of the Commissioner, Department of Corrections (DOC), explained
that by including the three-day jail time in the diversion
program, the estimated increase in cost was approximately an
additional $28,000 - except that these misdemeanants will still
be required to pay for the cost of incarceration, and [the DOC]
anticipates being able to collect approximately 80 percent of
those costs.
CHAIR ROKEBERG clarified that first-time offenders are required
to pay for their incarceration, their treatment, and their court
fines in order to be eligible for the diversion program.
REPRESENTATIVE JAMES, on that point, noted then that it would
not cost any more to include all first-time offenders in the
diversion program rather than limit it to those first-time
offenders whose BAC fell between .08 and .10.
CHAIR ROKEBERG referred to Representative Berkowitz's position
that the DOL's and the court's costs would go up as more people
fought to get into the diversion program.
REPRESENTATIVE BERKOWITZ clarified that his comments pertained
to an increase in costs due to having the window of .08 to .10
for eligibility into the diversion program. Without that
window, there would not be a need for offenders to challenge
their BAC levels; thus [the DOL's] and the court's costs would
not increase due to the diversion program.
Number 1352
CHAIR ROKEBERG remarked that this would be another pilot
program. He again made the motion to conceptually amend
Amendment 15 by adding the aggravators back in.
MR. FORD asked whether the term "aggravators" meant the
statutory aggravating factors.
MS. SEITZ referred to language on page 1, lines 15-16, of
Amendment 15 as it pertained to aggravating circumstances.
MR. FORD said he was not sure what "aggravating circumstances"
meant; there are aggravating factors in Title 12, he added, and
if that was what was being referred to, then he assumed that he
did know what was meant.
REPRESENTATIVE BERKOWITZ, to clarify, said:
If we argue to a court that, for example, the
circumstances of the incident were so serious that the
individual ... doesn't deserve a suspended imposition
of sentence. And, typically, when someone comes to
get an SIS, it's a first offense and it's of minimal
significance. It's an aberrant behavior, and it
hasn't been anything really bad. And so the
prosecutor ... agrees that a suspended imposition of
sentence is appropriate, [and] the court agrees. But
if the prosecutor doesn't agree or if the court
doesn't agree (... because there was a barroom fight
that was particularly nasty) then there is no
suspended imposition of sentence. But that's
something that the trier of fact gets to get a handle
on.
MR. FORD surmised, then, that the court defines what
"aggravating circumstances" are.
REPRESENTATIVE BERKOWITZ clarified that the courts do not define
it; they simply determine it on a case-by-case basis.
REPRESENTATIVE COGHILL added that it is a present discretion, as
he understands it.
MR. FORD said he would also like to clear up any ambiguity
associated with what SIS means and what is allowed. To this
end, he asked for the committee's permission to add an amendment
to the SIS provision that would "clearly craft this as an
exception to that."
CHAIR ROKEBERG said he agreed because it is important that the
courts don't follow Mr. Guaneli's interpretation and find in
favor [of the defendant by taking the first offense off the
record should there be a second offense]. He clarified that
Amendment 15, if amended, would return discretion to the judge
regarding aggravating circumstances for first-time offenders who
are participating in the diversion program, and would also add
in the three days of jail time.
Number 1480
REPRESENTATIVE BERKOWITZ remarked that the whole notion of
giving an SIS for a DWI is a retreat from the proposition that
the legislature considers DWI to be a serious offense. An SIS
is something that is usually awarded to someone for some kind of
youthful indiscretion.
CHAIR ROKEBERG said he differed with Representative Berkowitz
because he recognized that [the legislature] needed to focus on
therapy and treating people, and that that should be the
emphasis, which was all Amendment 15 would be doing.
MR. GUANELI said he agreed with Representative Berkowitz's
description of the current way in which SISs are used, but he
wanted [the committee] to clarify for the record exactly what is
intended with the diversion program. He pointed out that
currently it is "as clear as mud." The only thing that an SIS
does, he explained, is allow a person to get a conviction taken
off his/her record; if, in another part of the bill, an SIS does
not even do that, then he questioned what this person is getting
under the diversion program. He asked if the offender would
then be allowed to tell the insurance company that he/she has
never been convicted and thereby receive a lower rate. He asked
what the legal effect of this provision is.
CHAIR ROKEBERG responded that his objective was for the SIS to
serve as the "Sword of Damocles" hanging over the head of an
offender if he/she "got busted" a second time; the reward would
be that the person doesn't have to disclose the conviction if,
in fact, he/she completes the program for a year.
REPRESENTATIVE JAMES asked whether the insurance companies had
testified on this issue. She surmised that those companies
might be taking on a risk that they were unaware of.
CHAIR ROKEBERG reminded the committee that the status quo was
being changed by "lowering the bar," and that this would only
apply to the people who fall into that BAC window between .08
and .10.
Number 1650
CHAIR ROKEBERG announced at 3:09 p.m. that the committee would
stand in recess until 5:15 p.m. with Amendment 15 pending.
[Tape 01-44 has approximately 22 minutes of blank tape remaining
on Side A, and all of Side B is blank.]
TAPE 01-45, SIDE A
Number 0001
CHAIR ROKEBERG reconvened the meeting on CSHB 4(TRA) at 5:30
p.m., and noted that Amendment 15 was still under discussion.
He commented that he had spoken with Ms. Cashen [of MADD] during
the recess, and he relayed that she had indicated that if
Amendment 15, which includes the three days' jail time for
first-time offenders, were to be amended to include the
aggravators, then she and the Juneau MADD chapter could support
Amendment 15 and the diversion program in total.
Number 0079
CHAIR ROKEBERG again made a motion to conceptually amend
Amendment 15 by adding the aggravator [language] back in. He
explained that this would mean that if there were other
aggravating circumstances surrounding the first-time DWI offense
of a person with a BAC between .08 and .10, the judge could
preclude that offender from participating in the diversion
program.
REPRESENTATIVE MEYER questioned whether Ms. Cashen fully
understood the implications of SIS when she indicated to Chair
Rokeberg during the recess that the Juneau MADD chapter would
support the diversion program. He noted that some people feel
that even a person's first DWI offense should not be suspended,
and said he was under the impression that that was MADD's
position too.
CHAIR ROKEBERG assured the committee that he had relayed to Ms.
Cashen what the effects would be if Amendment 15 were to be
amended and then adopted, including the provisions of SIS, and
that she had expressed support.
REPRESENTATIVE BERKOWITZ noted that there were certain offenses
that were not permitted to have an SIS, even on a first offense.
He requested that Mr. Guaneli detail some of those types of
offenses.
MR. GUANELI explained that currently there are a variety of
offenses that are not eligible for SIS: sex offenses, some
weapons offenses, felony homicides, assaults, offenses involving
weapons in the commission of the offense, and any offense if the
offender has been previously convicted of a felony against a
person. He noted that there are also other statutes that
specifically state that an offender who commits a particular
crime would not be eligible for SIS. For the record, he stated
that the administration is opposed to Amendment 15. He added
that Amendment 15 does not have a quantifiable impact on the
DOL; he suggested, however, that Representative Berkowitz's
prior comments on increased court and DOL costs related to the
.08 to .10 window had merit.
Number 0490
CHAIR ROKEBERG asked whether there were any objections to the
conceptual amendment to Amendment 15. There being no objection,
the conceptual amendment to Amendment 15 was adopted.
Number 0522
CHAIR ROKEBERG asked whether there were any objections to
Amendment 15, as amended. There being no objection, Amendment
15, as amended, was adopted.
CHAIR ROKEBERG brought attention to Amendment 16 [LS-0046\S.8,
Ford, 3/21/01.].
REPRESENTATIVE BERKOWITZ requested that Amendment 16 be taken up
later, not just because of its length, he added, but because it
encompasses sections of CSHB 4(TRA) that have previously been
amended.
Number 0608
CHAIR ROKEBERG made a motion to adopt Amendment 17, which read
[original punctuation provided]:
Page 20, line 8:
Restore deleted language [RESIDENTIAL TREATMENT
FACILITY, HOSPITAL]
Page 20, lines 10-11
Delete new language "; appropriate place" does
not mean a residential treatment facility or a
hospital.
Number 0617
MARGOT KNUTH, Assistant Attorney General, Office of the
Commissioner - Juneau, Department of Corrections, informed the
committee that she was speaking as a representative of the
Criminal Justice Council (CJC), which is a successor group to
the Criminal Justice Assessment Commission (CJAC). She noted
that the members of CJC are Bruce Botelho, Barbara Brink, Brant
McGee, Glenn Godfrey, Karen Perdue, Margaret Pugh, and Stephanie
Cole.
MS. KNUTH explained that Amendment 17 impacts the credit that
can be given for the time that defendants spend in a residential
treatment facility or hospital. As initially drafted, CSHB
4(TRA) on page 20, lines 8 and 10-11, would change the statute
that currently says that the commissioner of corrections can
determine another appropriate place where imprisonment for
first- and second-time DWI offenses can be served should a
community residential center not be available. Language in CSHB
4(TRA) removes a residential treatment center or hospital from
the list of available options, and the language further
stipulates that an "appropriate place" does not mean a
residential treatment center or hospital.
MS. KNUTH said the concern the CJC has is that the existing
language of the statute provides an incentive to get people with
alcohol problems into residential treatment programs, and the
CJC believes that this is a very good thing. For many people in
Alaska, she continued, alcohol is a serious issue, it is a
disease for them, and they need treatment. She surmised that
the question is: "To what extent are we willing to go to
encourage and to require people to get that treatment?" She
said that according to her understanding, the chair believes
that there would be value in having every person who is
convicted of DWI spend three days in incarceration of some sort,
be it a halfway house or a correctional facility.
Number 0850
MS. KNUTH acknowledged that there may be some residential
treatment facilities that are inappropriate; however, the CJC
has been looking at what are appropriate facilities, and it has
come to the attention of the administration that there are a
couple of alcohol-education halfway houses that do not meet the
criteria that other people have agreed on as being appropriate
for a good program. She added that there is a judge who has
allowed credit for those alcohol-education halfway houses;
however, they are not residential facilities, but are simply
halfway houses that offer an alcohol-education program.
MS. KNUTH explained that currently, there is a subcommittee of
the CJC that is going through and investigating every place that
offers residential treatment in Alaska; this subcommittee is
also creating a list of criteria that it believes is appropriate
to require of residential treatment facilities. She said [the
CJC] wants to work with the court system to have an approved
list of treatment facilities that would be used.
MS. KNUTH, in conclusion, expressed the concern that the
language in CSHB 4(TRA) that amends what may be considered an
"appropriate place" goes too far, and it would preclude people
who are getting residential treatment from receiving credit
towards their sentence for that time.
CHAIR ROKEBERG explained that that language, which refers in
part to Nygren credits, was an attempt to take care of a problem
created by the current practice of defense attorneys who place
their clients who can afford treatment into treatment programs
so that by the time they get to court, those clients have
already acquired Nygren credits for their time served, which
enables them avoid any further incarceration and/or treatment.
REPRESENTATIVE BERKOWITZ declared a conflict because he had been
a member of CJAC. He went on to say that although he understood
Chair Rokeberg's concern, the aforementioned practice by defense
attorneys can be curtailed by ensuring in other parts of the
legislation that the Department of Health and Social Services
(DHSS) has to certify treatment as being appropriate. He
acknowledged that since this has not always been the case, there
was concern that people were serving time in inappropriate
facilities. He posited that this possibility was eliminated
through other parts of CSHB 4(TRA).
MS. SEITZ commented that CSHB 4(TRA) did encompass some
treatment standards, and that Amendment 10 [adopted 3/26/01]
already altered the language referred to in Amendment 17 so that
offenders could be in a hospital setting if they needed to be.
Number 1068
MS. KNUTH clarified that Amendment 10 allowed an offender to be
in a hospital if they required medical attention, but that would
not go to the treatment element.
MS. BROWER remarked that she had not taken into consideration
the language encompassed in Amendment 17 when compiling the
fiscal notes. She added that not having either residential
facilities or hospitals as options would increase the stress on
[the DOC] system.
CHAIR ROKEBERG remarked that his concern had been the "gaming of
the system" with regard to Nygren credits, but he acknowledged
that [the legislature] did not want to dissuade people from
receiving treatment.
REPRESENTATIVE BERKOWITZ said that the normal practice is that
before someone gets Nygren credit, the defense attorney and the
prosecuting attorney discuss the issue; otherwise, the Nygren
credit is opposed.
MR. GUANELI added that given that the attorney general [Bruce
Botelho] is on the CJC, he certainly supports Mr. Botelho's
position [on Amendment 17]. He said he thought that it would be
beneficial for all criminal justice professionals to come to an
agreement as to which programs have conditions that are
sufficiently equivalent to incarceration so that credit for time
spent in them justifies credit against a sentence. He
acknowledged that there are some problems related to Nygren
credits, and he agreed with Chair Rokeberg with regard to
defense attorneys' setting things up. However, he suggested
that the best way to go about resolving those issues was to have
an approved list developed by the criminal justice professionals
based on a review of the conditions that exist in each of those
facilities; those facilities that are approved would get Nygren
credit, and the others wouldn't.
MS. KNUTH, on the issue of gaming the system, said that if the
program arranged for by the defense attorneys is not a good one,
there is a problem; if it is a good program, however, the fact
that somebody's doing it for gaming-the-system motives is
essentially irrelevant because studies have now shown that
treatment is effective even if the person's motives for being in
there are manipulative, and even if he/she is there unwillingly.
Therefore, if there is a reason for a judge, a defense attorney,
and a prosecuting attorney to encourage somebody to go into
treatment, it's a good thing for that person to get that
treatment.
REPRESENTATIVE BERKOWITZ advocated that Amendment 17 is a good
amendment, and he noted that the criminal justice professionals
are in agreement that it is a good idea.
CHAIR ROKEBERG noted that gaming the system with regard to
Nygren credits is an issue that has been bothering him because
it is corruptive. He acknowledged, however, that preceding
testimony had widened his viewpoint with regard to the impacts
of treatment and where available funds and efforts should be
placed.
Number 1308
CHAIR ROKEBERG noted that there were no objections to Amendment
17. Therefore, Amendment 17 was adopted.
Number 1334
CHAIR ROKEBERG made a motion to adopt Amendment 18, which read
as follows [original punctuation provided]:
Page 22, lines 21-23:
Delete new paragraph (q) and renumber the
remaining paragraph accordingly.
MS. SEITZ explained that according to representatives from the
Public Defender Agency (PDA) and the DOC, the language
encompassed in [subsection] (q) is already covered in other
areas of statute [and Amendment 18 would simply remove that
language]. She added that the legislative drafter said that
this language is not in conflict with any other provision of
state law; hence the language could be left in CSHB 4(TRA). She
also acknowledged Chair Rokeberg's intention that it be clear
that an offender would not be eligible for "good time
deductions" if he/she did not complete alcoholism treatment.
MS. BROWER said that deletion of the language in [subsection]
(q) - via Amendment 18 - is an effort to keep CSHB 4(TRA)
simple. She explained that she knows from firsthand experience
that the other areas of statute encompassing the intent of
[subsection] (q) are utilized by the DOC. It is common
knowledge and practice that if somebody does not comply with a
court order, there are various ways that that person can, and
will, be penalized. She added that according to her
understanding, if an offender is unable to complete alcoholism
treatment because, for example, the state did not provide it
while he/she was incarcerated, then that person would not lose
any "good time" credit.
REPRESENTATIVE BERKOWITZ asked if inclusion of [subsection] (q)
in CSHB 4(TRA) would give an individual who was incarcerated,
but not provided with alcoholism treatment, a cause of action
against the state.
MS. BROWER replied that it would not unless the state tried to
penalize that person for not completing alcoholism treatment.
She also confirmed that if the state did not provide treatment
and tried to impose penalties for noncompliance due to
circumstances beyond the offender's control, it would increase
the state's liability.
Number 1578
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration, testified via
teleconference. He said that the intent of [subsection] (q) is
covered elsewhere in current law, and that he thinks those other
statutes are carefully drafted to set up a process by which the
DOC, the parole board, or a judge can look at failure to do
treatment. He offered that Representative Berkowitz had a good
point: [subsection] (q) would seem to make somebody ineligible
for "good time" deductions if he/she did not complete the
treatment requirement, even if there was a good reason for
noncompliance, whereas the other statutes are drafted in such a
way as to take noncompliance for good reason into account.
REPRESENTATIVE BERKOWITZ, on the point of state liability, said
that if the state is requiring an individual to complete a
[treatment] program at a place where he/she has no access to a
program, then the state should be required to provide the
program. Thus, he pointed out, the fiscal note would increase
should the committee fail to adopt Amendment 18.
Number 1701
CHAIR ROKEBERG noted that there were no objections to Amendment
18. Therefore, Amendment 18 was adopted.
CHAIR ROKEBERG announced that he would not offer Amendment 19
[22-LS0046\S.24, Ford, 3/26/01] because its subject matter would
be addressed by forthcoming Amendment 36.
Number 1737
CHAIR ROKEBERG made a motion to adopt Amendment 20 [22-
LS0046\S.23, Ford, 3/26/01]. [Amendment 20 is provided at the
end of the minutes on HB 4.] He explained that it removes the
requirement that the DMV must refuse to register a vehicle if
the applicant does not have a driver's license, it reduces the
fiscal note by $547,000, and it removes provisions relating to
the Adult Repeat Offender Status System (AROSS). There being no
objection, Chair Rokeberg announced that Amendment 20 was
adopted.
Number 1776
CHAIR ROKEBERG made a motion to adopt Amendment 21 [22-
LS0046\S.22, Ford, 3/26/01]. [Amendment 21 is provided at the
end of the minutes on HB 4.] He explained that it would give
discretion to the courts to suspend up to $5,000 of the $10,000
fine imposed on third-time DWI offenders.
Number 1780
REPRESENTATIVE MEYER objected for the purpose of discussion.
MR. GUANELI explained that the concern was that treatment is
expensive enough, following incarceration, for most offenders,
and "hitting" them with a $10,000 fine would take away a lot of
money that could otherwise be used for treatment. He noted that
according to an Internet list he had come across, the current
$5,000 penalty is far and away the highest mandatory fine in the
country. Allowing the court to suspend $5,000 of a $10,000 fine
on the condition that the person pay for treatment is an
appropriate thing to do, he said.
REPRESENTATIVE MEYER inquired what Amendment 21 would do to the
fiscal note.
CHAIR ROKEBERG surmised that Amendment 21 would not have much
fiscal impact.
Number 1840
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System (ACS
or the "court"), simply confirmed that Amendment 21 would not
have any fiscal impact on the ACS.
REPRESENTATIVE MEYER withdrew his objection.
Number 1852
CHAIR ROKEBERG, noting there were no further objections,
announced that Amendment 21 was adopted. [Chair Rokeberg
announced that 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 13B [22-LS0046\S.14, Ford, 3/23/01] (adopted):
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,"
Amendment 14 [22-LS0046\S.20, Ford, 3/23/01] (adopted):
Page 28, following line 6:
Insert a new bill section to read:
"* Sec. 47. AS 28.35.036(e) is amended to read:
(e) If not released under AS 28.35.037, a motor
vehicle, aircraft, or watercraft forfeited under this
section may be disposed of at the discretion of the
Department of Public Safety. Disposal under this
subsection includes, by way of example and not of
limitation,
(1) sale, as a unit or in parts, including
sale at an auction, and the proceeds deposited into
the general fund;
(2) transfer to a state or municipal law
enforcement agency;
(3) being declared surplus and transferred
to the Department of Administration; or
(4) being destroyed."
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. 52"
Amendment 15 [22-LS0046\S.21, Ford, 3/23/01] (original version;
adopted after being amended):
Page 7, line 29:
Delete "execution"
Insert "imposition"
Page 8, line 1:
Delete "execution"
Insert "imposition"
Page 8, line 13:
Delete "by the end of the following business day"
Insert "within five working days"
Page 16, line 13, through page 17, line 4:
Delete
"(i) there were no aggravating
circumstances associated with the acts upon which the
conviction is based and, as determined by a chemical
test taken within four hours after the alleged offense
was committed, there is 0.08 percent but not more than
0.1 percent by weight of alcohol in the person's blood
or 80 milligrams but not more than 100 milligrams of
alcohol per 100 milliliters of blood, or when there is
0.08 grams but not more than 0.10 grams of alcohol per
210 liters of the person's breath, the court shall
suspend the execution of the sentence of imprisonment
upon the condition that the person successfully
completes one year of probation during which the
person does not commit an alcohol-related offense or a
traffic offense, the person successfully completes the
program requirements imposed under (h) of this
section, the person pays the cost of treatment
required under (h) of this section, the person
performs three days of community service, and the
person pays the fine imposed by the court under this
subparagraph; upon determination by the court that the
person has satisfied the terms of probation, the court
shall discharge the defendant; however, if the court
determines that the terms of probation have not been
satisfied within one year from the date on which the
terms were set by the court, the court shall require
the execution of the sentence of imprisonment
determined under this subparagraph;"
Insert
"(i) the person had, as determined by a
chemical test taken within four hours after the
alleged offense was committed, 0.08 percent but less
than 0.10 percent by weight of alcohol in the person's
blood or 80 milligrams but less than 100 milligrams of
alcohol per 100 milliliters of blood, or if there is
0.08 grams but less than 0.10 grams of alcohol per 210
liters of the person's breath, the court shall suspend
imposition of the sentence; the suspended imposition
of sentence is conditioned upon the person's serving
72 consecutive hours of imprisonment and successfully
completing a period of probation of at least one year
during which the person does not commit an alcohol-
related offense or a traffic offense, the person's
successfully completing the treatment program
requirements imposed under (h) of this section, the
person's paying the cost of treatment under (h) of
this section, the person's performing 24 hours of
community service, and the person's paying the fine
imposed by the court under this paragraph;"
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"
Page 22, line 1, following "section":
Insert ", including a conviction in which the
person receives a suspended imposition of sentence
under (b)(1)(A)(i) of this section,"
Amendment 20 [22-LS0046\S.23, Ford, 3/26/01] (adopted):
Page 4, lines 16 - 18:
Delete
"(1) does not have a valid driver's license
and the applicant's license or privilege to obtain a
license has been suspended or revoked; or
(2)"
Page 28, lines 7 - 12:
Delete all material.
Renumber the following bill sections accordingly.
Page 29, line 2:
Delete all material.
Renumber the following bill section accordingly.
Page 29, line 3:
Delete "except as provided in sec. 51 of this
Act, this"
Insert "This"
Amendment 21 [22-LS0046\S.22, Ford, 3/26/01] (adopted):
Page 20, line 19:
Delete "$10,000 [$5,000] and"
Insert "$10,000, of which the court may suspend
up to $5,000;
(2) shall impose [AND]"
Page 20, line 27:
Delete "(2)"
Insert "(3) [(2)]"
Page 20, line 29:
Delete "(1)"
Insert "(2) [(1)]"
Page 21, line 1:
Delete "(3)"
Insert "(4) [(3)]"
Page 21, line 4:
Delete "(4)"
Insert "(5) [(4)]"
Page 21, line 8:
Delete "(5)"
Insert "(6) [(5)]"
Page 21, line 11:
Delete "(6)"
Insert "(7)"
Page 22, line 16:
Delete "(n)(3)"
Insert "(n)(4)"
[End of amendments - HB 4 was held over, with the meeting having
been recessed to a call of the chair.]
ADJOURNMENT
Number 1869
CHAIR ROKEBERG [recessed] the House Judiciary Standing Committee
meeting at 6:00 p.m.
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