02/22/2001 01:14 PM House TRA
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE TRANSPORTATION STANDING COMMITTEE
February 22, 2001
1:14 p.m.
MEMBERS PRESENT
Representative Beverly Masek, Vice Chair
Representative Scott Ogan
Representative Drew Scalzi
Representative Peggy Wilson
Representative Mary Kapsner
Representative Albert Kookesh
MEMBERS ABSENT
Representative Vic Kohring, Chair
COMMITTEE CALENDAR
HOUSE BILL NO. 127
"An Act relating to emergency equipment to be carried on
aircraft."
- MOVED CSHB 127(TRA) OUT OF COMMITTEE
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. 39
"An Act relating to registration of motor vehicles, to operating
a motor vehicle, aircraft, or watercraft while intoxicated, and
to driving with a cancelled, suspended, or revoked driver's
license; relating to duties of the division of alcoholism and
drug abuse regarding driving-while-intoxicated offenses; and
providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 127
SHORT TITLE:AIRCRAFT EMERGENCY EQUIPMENT
SPONSOR(S): REPRESENTATIVE(S)HARRIS
Jrn-Date Jrn-Page Action
02/14/01 0317 (H) READ THE FIRST TIME -
REFERRALS
02/14/01 0317 (H) TRA
02/22/01 (H) TRA AT 1:00 PM CAPITOL 17
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
WITNESS REGISTER
REPRESENTATIVE JOHN HARRIS
Alaska State Legislature
Capitol Building, Room 513
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 127.
REPRESENTATIVE NORMAN ROKEBERG
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 4.
JANET SEITZ, Staff
to Representative Rokeberg
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801-1182
POSITION STATEMENT: Answered questions regarding HB 4.
MARY MARSHBURN, Director
Division of Motor Vehicles
Department of Administration
3300 B Fairbanks Street
POSITION STATEMENT: Spoke on behalf of the Division of Motor
Vehicles and answered questions on HB 4.
DEAN GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Provided department's position and answered
questions regarding HB 4.
DEL SMITH, Deputy Commissioner
Department of Public Safety
PO Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Provided department's position on HB 4 and
answered questions.
KAREN ROGINA
Alaska Hospitality Alliance;
Member, DUI Task Force
330 East Fourth Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on behalf of the Alaska Hotel and
Motel Association, and the Alaska Restaurant and Beverage
Association, in support of HB 4.
JACK AMON, Volunteer President
Alaska Restaurant and Beverage Association;
Owner, Mark Brothers Cafe
Member, DUI Task Force
627 West Third Avenue
Anchorage, Alaska 99501
POSITION STATEMENT: Testified in support of HB 4.
ACTION NARRATIVE
TAPE 01-13, SIDE A
Number 0001
REPRESENTATIVE BEVERLY MASEK, acting as the chair, called the
House Transportation Standing Committee meeting to order at 1:14
p.m. [stated as 4:14 p.m.] Representatives Kapsner, Scalzi,
Ogan, Wilson, and Masek were present at the call to order.
Representative Kookesh arrived as the meeting was in progress.
HB 127-AIRCRAFT EMERGENCY EQUIPMENT
REPRESENTATIVE MASEK announced that the first order of business
would be HOUSE BILL NO. 127, "An Act relating to emergency
equipment to be carried on aircraft."
Number 0091
REPRESENTATIVE JOHN HARRIS, Alaska State Legislature, sponsor of
HB 127, said he would explain the history of how this bill came
about. "Our friends in Canada," who "we" deal with on a
relatively regular basis, have passed a law that makes it
illegal to own a handgun. The law also requires a permit to
carry a rifle or shotgun through Canada. However, Alaska law
that has been in place since the 1940s or possibly before
statehood, requires one to carry a firearm on an aircraft if one
is flying farther than 25 miles from the base. Alaska law also
requires one to carry an assortment of other emergency equipment
on the plane.
Number 0242
REPRESENTATIVE HARRIS stated that a number of private pilots in
Alaska brought to his attention that this is a problem when
flying from Alaska through Canada to the Lower 48. A pilot will
be in violation of Alaska's law if he or she does not have a gun
and in violation of Canada's law if he or she does not go
through the training course and testing that is required in
order to carry a shotgun. Therefore, a "very basic fix" to this
dilemma would be to take away the section of the law that says
one is required to carry a pistol, revolver, shotgun, or rifle,
if one is going through Canada on a cross country flight that
has been filed with federal authorities, the flight service
station, or the tower.
REPRESENTATIVE HARRIS explained that the other part of the
original legislation about which there had been some complaint
was the requirement of "one small gill net." This is "somewhat
difficult" to come up with, to put in an airplane, he said, and
most people do not have one.
REPRESENTATIVE HARRIS mentioned that both of these changes [the
handgun requirement into Canada and the removal of gill net] are
not a problem with troopers and others that he has talked to.
These people realize that there are issues involving Alaskan and
Canadian law conflicts. However, this does not take away the
responsibility of a private pilot to carry a firearm in his or
her airplane when flying in Alaska. It is only an exemption for
a flight through Canada.
REPRESENTATIVE MASEK asked how many people the new law in Canada
affects.
REPRESENTATIVE HARRIS replied that every private pilot in the
state [Alaska] who flies through Canada is affected by the new
law. He does not know how many people fly back and forth [to
Canada]. But, there are a "significant" number of people who
do. They go to Washington [State], and to "Oshkosh for the fly-
in every year."
Number 0341
REPRESENTATIVE OGAN remarked that it is not illegal to bring a
shotgun or rifle into Canada if one pays the fee and registers
the item.
REPRESENTATIVE HARRIS said that with the new Canadian law, one
has to go through a two-day training course in order to bring a
shotgun or rifle into Canada. So, it is more complicated than
it used to be.
Number 0377
REPRESENTATIVE OGAN wondered, for pilots who fly back and forth
[Alaska to Canada], if HB 127 is "really creating quite a bit of
exposure for pilots to fly without a weapon." He mentioned that
he never flew without a weapon, but he said, "Of course, I
wasn't flying to Canada." "We" did not remove the requirement
for pistols when Canada banned them from coming in, although
pilots were still able to bring in a revolver or shotgun. He
said that if he was going to fly to Canada, he would take the
training course or "jump through the hoops" because he would not
fly without a weapon in a small airplane.
REPRESENTATIVE HARRIS replied that this would "certainly be your
prerogative." House Bill 127 allows people to fly legally in
Alaska by allowing them to take the "chance" [flying without a
weapon] or enabling them not to take the training course. But
one is still required by Alaska law to carry a firearm on board
when flying in Alaska.
Number 0481
REPRESENTATIVE OGAN suggested looking at changing the
requirements for having one wool blanket. When this legislation
was written, he surmised, wool was probably the choice fabric
for a blanket. But some survival blankets and synthetic
[fabrics] now "wick" water as much as a wool blanket. He
indicated concern that the law might be applied strictly, and
said he might offer an amendment [that wool not be required.]
REPRESENTATIVE HARRIS commented that he would not have a problem
with this [wool blanket change]. "We" were only dealing with
the two issues that were brought forward, he said. However,
there are a number of requirements in this legislation, some of
which are very outdated. This law has not been modified in
fifty years.
REPRESENTATIVE MASEK asked Representative Harris if he has
looked into speaking with the Canadian government to see if they
would give any exemption for people who fly from Alaska to the
Lower 48.
REPRESENTATIVE HARRIS replied that Yukon Territory and British
Columbia would "love" to do this, but they are under federal
law, which is based out of Ottawa. At this point, they are not
interested in giving exemptions.
Number 0629
REPRESENTATIVE WILSON mentioned that many people in her area go
up the Stikine River to enter Canada. She asked if this [new
Canadian law] will affect people who go from the United States
to Canada in this way.
REPRESENTATIVE HARRIS replied that the law is pertinent to
anyone going to Canada. He reiterated Representative Ogan's
comments that a person can carry [a rifle or shotgun], if one
meets the requirements for doing so, no matter what the form of
transportation into Canada is. Even if someone is flying from
Southeast Alaska, a short way to Canada, a person is technically
required to check in with customs.
REPRESENTATIVE OGAN noted that Representative Scalzi had
suggested adding the words "or equivalent" after "wool blanket",
which would become Amendment 1. He remarked that he was not
sure if "we need two small boxes of matches." He suggested that
the bill just say "matches."
REPRESENTATIVE HARRIS commented that he fully supports the
amendment. He added that "we" did not add items to this bill
that "we could have", which is fine since firearms is the major
issue of HB 127.
Number 0781
REPRESENTATIVE MASEK made a motion to adopt Amendment 1, as
follows:
Page 2, line 14, after "one wool blanket" insert "or
equivalent".
There being no objection, it was so ordered.
Number 0808
REPRESENTATIVE OGAN made a motion to adopt Amendment 2, as
follows:
Page 2, line 5, delete "two small boxes of matches"
and insert "fire starter".
REPRESENTATIVE OGAN explained that there are some "high-tech"
fire starters available nowadays, and the committee should
modernize the statute since members are already dealing with it.
REPRESENTATIVE HARRIS said he had no problem with Amendment 2.
He remarked that in many federal aviation statutes, there are a
number of things that are fairly outdated.
Number 0839
REPRESENTATIVE MASEK asked if there was any objection to
Amendment 2. There being no objection, Amendment 2 was adopted.
Number 0871
REPRESENTATIVE KOOKESH commented:
[I have] flown all my life, and I've never seen a
plane carry enough food for two weeks for each
occupant. A pair of snowshoes in Southeast Alaska
makes as much sense as having enough food [for two
weeks]. If you require that [food] and snowshoes, ...
I hope you are not planning to move this out today
....
REPRESENTATIVE MASEK said it has been in statute since 1949.
REPRESENTATIVE KOOKESH stated that many people have been in
violation of it [food requirement], because he has never been on
an airplane where somebody has carried that much food. He said
the pair of snowshoes is the only other part that he objects to
in HB 127.
REPRESENTATIVE HARRIS remarked that if Representative Kookesh
wanted to make an amendment to eliminate that [snowshoes], it
wouldn't bother him. However, especially in the winter, if
someone goes down in an airplane, especially in the winter,
having snowshoes would be "pretty valuable" in some areas of the
state.
REPRESENTATIVE WILSON indicated agreement with keeping the
snowshoe requirement because in some higher, mountainous areas,
there is always snow at the peaks.
Number 1018
REPRESENTATIVE WILSON made a motion to move HB 127, as amended,
out of committee with individual recommendations and the
attached zero fiscal note. There being no objection, CSHB 127
(TRA) moved from the House Transportation Standing Committee.
HB 4-OMNIBUS DRUNK DRIVING AMENDMENTS
[Contains discussion of HB 172 and HB 39]
REPRESENTATIVE MASEK stated that the next order of business was
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."
Number 1074
REPRESENTATIVE NORMAN ROKEBERG, Alaska State Legislature,
sponsor of HB 4, declared that HB 4 would be the most important
legislation introduced this session. He summarized HB 4 as the
"omnibus habitual offender alcohol bill." The purpose of this
legislation is to "separate the habitual offenders and those
people who are abusing alcohol and get on the roads and lead to
the high level of tragic accidents and deaths in this state."
Number 1137
REPRESENTATIVE MASEK made a motion to adopt the proposed
committee substitute (CS) for HB 4, version 22-LS0046\P, Ford,
2/16/01, as a work draft. There being no objection, Version P
was before the committee.
REPRESENTATIVE ROKEBERG explained that there was a rash of
unfortunate accidents, starting last year, which elevated public
attention. The general public recognized that the legislature
had not done enough to separate vehicles from habitual offenders
and those abusing alcohol [while] driving. The Alaska State
Legislature did increase penalties for Driving While Intoxicated
(DWI) in 1995, by making the third conviction of a DWI a felony
and increasing penalties. However, offenders have not gotten
the message. For this reason, the Municipality of Anchorage
created a task force to look into DWI issues in order to make
recommendations to the local assembly and legislature.
REPRESENTATIVE ROKEBERG informed the committee that the packet
they received contains a copy of the Final Report of the DUI
(Driving Under the Influence of an alcoholic beverage or
controlled substance) Prevention Task Force, including its
recommendations. He stated that [Version P] incorporates a
large number of these recommendations. He introduced Janet
Seitz, staff to Representative Rokeberg, who served on the DUI
Task Force along with Denise Henderson, staff to Representative
Pete Kott. This gave a unique opportunity for the legislature
to be involved in the public process of developing
recommendations. He mentioned that he would rely on Ms. Seitz
for technical interpretations, if needed.
Number 1249
REPRESENTATIVE ROKEBERG stated that the committee's packets
contain information that "we" have been looking at for the past
nine months. The packet contains news articles.that address
some of the senseless tragedies from DWI.
REPRESENTATIVE ROKEBERG pointed out that a large part of Version
P deals with changing the term from "DWI" to "DUI". There has
been some debate on this issue. However, the DUI Prevention
Task Force recommended this change. This is appropriate since
Version P includes adopting the .08 [blood alcohol concentration
(BAC)] standard. He said:
Changing the name of the offense because we're
changing the standard of the offense, sends, I think,
a clear message to the public. I think it's worth
cutting down a few trees to get the message across
that we are confronting this issue. We are taking it
very seriously. We want the public to be aware of
... the fact that we do not want people that are under
the influence of alcohol [or] controlled substances to
be driving vehicles on our streets and highways.
Number 1316
REPRESENTATIVE ROKEBERG explained that Version P increases the
presumptive sentence for a first felony conviction for
manslaughter [as a result of DUI] from five years to seven
years. This is a recommendation from the Department of
Corrections. The maximum sentence would not be more than 20
years.
REPRESENTATIVE ROKEBERG stated that Version P mandates that the
Division of Motor Vehicles (DMV) refuse to register a vehicle if
the applicant does not have a valid driver's license. The bill
provides procedures to follow up on this. This bill also
requires that one's name on a driver's license and registration
be consistent with the full name of the applicant. This is a
small detail, but currently it is impossible to cross-match
one's driver's license with one's registration because of the
way the names are in the DMV databases. The only solution is to
obtain new databases. This [provision in Version P] would be a
"quick fix" until the new databases are in place, hopefully in
the next few years.
REPRESENTATIVE ROKEBERG described another aspect of Version P as
changing the grounds which a law enforcement officer can stop
and arrest someone. House Bill 4 repeals the phrase "reasonable
grounds" and replaces it with "probable cause grounds".
REPRESENTATIVE ROKEBERG said that Version P further mandates
anyone who is convicted of a DUI offense in court to notify the
DMV at the end of the following business day. Right now, this
can take up to 60 days due to a lack of electronic
infrastructure in the state and court. Version P would have the
court report to the DMV that there is supposed to be a license
identification and/or suspension.
Number 1479
REPRESENTATIVE ROKEBERG named the major provision and perhaps
somewhat more controversial part of the bill as the adoption of
the .08 BAC (Blood Alcohol Concentration) standard. The bill
establishes that the minimum license revocation period would be
not less than 45 days if the person has not been previously
convicted, and if the court has suspended the execution of the
sentence under the .08 diversion program.
REPRESENTATIVE ROKEBERG stated that Version P mandates that
anyone receiving a limited driver's license [following a DUI
conviction or refusal to take a breath test] shall only operate
vehicles equipped with an ignition interlock device. This was a
recommendation of the Task Force.
REPRESENTATIVE ROKEBERG specified that Version P requires a
person who loses his or her driver's license [for DUI or refusal
to take a breath test] to meet the alcohol screening,
evaluation, program, [and referral] requirements as established
by the Department of Health and Social Services. A limited
driver's license may be granted in the final 30 days in which
the license is revoked, if certain provisions are met.
REPRESENTATIVE ROKEBERG explained that this bill changes some of
the provisions [for reinstatement of licenses] and tightens them
up. A person [whose driver's license has been revoked] may
apply for a driver's license at the end of a period of
revocation or limitation. However, that person must submit to
re-examination, pay all required fees including a reinstatement
fee, and show proof that he or she has met the alcohol
screening, evaluation, referral and program requirements. In
short, provisions were tightened and fees were raised.
REPRESENTATIVE ROKEBERG stated that the bill raises the
reinstatement fees for driver's licenses [if revocation is due
to DUI]. The first time someone is convicted of DUI, the
reinstatement fee for a revoked driver's license will be $200.
If a person's license has been revoked two or more times, the
reinstatement fee will be $500.
REPRESENTATIVE ROKEBERG pointed out that the bill "tightens up"
the "enabler" statute, meaning somebody who "enables a driver to
drive a car." Currently this is considered a misdemeanor.
However, this bill is increasing the fine if someone is charged
with being an enabler more than once.
REPRESENTATIVE ROKEBERG explained that DUI includes driving
(indisc.) [an] aircraft or watercraft while under the influence
of an alcoholic beverage or [controlled substance].
Number 1588
REPRESENTATIVE ROKEBERG reiterated that a major component of
this bill is that it lowers the BAC to .08, which is supported
by the Task Force and administration. He said that the House
Judiciary Standing Committee has had a hearing on the "road
appropriation situation" that revolves around the .08 adoption,
which might interest the House Transportation Standing
Committee. The State of Alaska, because of the federal mandate,
stands to lose substantial monies in the future if the .08 BAC
is not adopted. He believes that this would take effect, in the
loss of $3.5 million in the first year, which would affect "us"
in FY 03. He said he believes that [the state] is in a position
to lose money from the transportation allocations from Congress
in two years, if .08[BAC] is not adopted.
Number 1655
REPRESENTATIVE ROKEBERG stated that if provisions in the law
that meet federal standards for additional alcohol education and
transportation programs are adopted, there are additional
monies, up to $800,000, that can be obtained for some of
[Alaska's] alcohol programs. He mentioned that this might be an
area of interest to the House Transportation Standing Committee.
REPRESENTATIVE ROKEBERG informed the committee that there are
provisions if the state chooses to delay the adoption of the .08
[BAC] standard. He said it was his understanding that up to the
year 2007, "we could recapture the capital dollars that were
gone earlier," creating a phase-in period. He said:
Inasmuch as we were adopting a whole new scheme of
dealing with the use of alcohol and driving, it would
seem to be most appropriate to pick up the .08 [BAC]
issue and integrate it into a new scheme because of
graduated penalties and trying to make sense out of it
at this time, rather than delaying it. But that's
certainly a policy call that the legislature has to
make. But I would just point out that where in the
past I have been known to oppose .08 [BAC], I [would]
just like to take legislative notice that I put it in
this bill.
Number 1748
REPRESENTATIVE ROKEBERG stated that the first offense under the
.08 BAC standard would still remain a class A misdemeanor. The
fine would be increased to $500 from $200. [Version P] also
establishes a diversionary program for those whose BAC is .08
but not more than .01. Therefore, for the 20 percent of people
whose BAC that "we're rolling the threshold for," this has an
"offsetting opportunity" for someone who is arrested. But there
have to be no aggravating factors in the person's situation.
The diversion program is for those who "happen to be caught for
driving with that modest amount of decreased impairment." He
explained:
The court shall suspend execution of the current 72-
hour consecutive sentence upon condition that the
person successfully completes a one-year probation of
no traffic- or alcohol-related offenses, completes
treatment requirements, pays for the cost of
treatment, performs three days of community service,
and pays the increased fines for the court. If not
satisfactorily ...completed, the imprisoned sentence
is served.
Number 1800
REPRESENTATIVE ROKEBERG stated that if the BAC level on
someone's first offense was .10 or higher, the fine would
increase to $1,500 from $250. The fine for a second misdemeanor
offense is raised to $3,000 from $500, with a minimum sentence
of not less than 30 days, or not less than 20 days if the person
performs 10 days of community service. But, if someone has a
second misdemeanor and his or her BAC is .16 or over, the person
will receive an additional six-month imprisonment plus a 30-day
residential treatment program. So, if someone is substantially
drunk and has a BAC of .16 [or over], he or she will serve a
substantially longer term.
REPRESENTATIVE ROKEBERG remarked that the largest fiscal note
for this bill is the part dealing with aggravators "because the
aggravators that are in the bill go through almost every
incidence of arrest in this area." The total cost of this
fiscal note is $24 million. He said that the chances of this
aggravator portion of the bill "surviving" is greatly decreased
due to this fiscal note designed by the Department of
Corrections. He said that he wanted to bring this fiscal note
to the committee's attention in case they saw something that
would relate to aggravators or the aggravated provision
(indisc.).
REPRESENTATIVE ROKEBERG explained that this bill requires that
the past history treatment of the defendant be provided to the
court, prosecutor, defendant, and agency involved in the current
treatment. A problem in treatment elements is that at times a
court may impose certain treatments. However, if the person has
any history of alcohol treatment that has not worked in the
past, for example, the law should require the information. This
should be done before adjudication is made about what "treatment
regime" or direction is given to the accused.
Number 1911
REPRESENTATIVE ROKEBERG reiterated that the Department of Health
and Social Services would establish standards for clinically
appropriate treatment. These standards must include alcohol and
drug treatment, anger management counseling, parent training,
and domestic violence prevention. This treatment would occur,
as much as possible, while the person was incarcerated. The
offender would be required to pay up to $2,000 to the state for
reimbursement of treatment. The court would include
reimbursement of treatment costs as part of the offender's
sentence. If the person is indigent, only the permanent fund
dividend can be used to reimburse for treatment. In all other
cases, the permanent fund dividend may be sought for
reimbursement and cost of treatment. But this does not include
cost incurred as a result of treatment, not required under the
treatment standards.
REPRESENTATIVE ROKEBERG stated that preliminary information he
has concerning the wellness program in Anchorage shows that
there are a number of different treatment options put forward,
most of which are at outpatient treatment levels. These
programs cost between the $2,000 to $3,000 range. Therefore,
"we" are looking at trying to recruit (indisc.) as much as
possible from the person that requires a service, even though
there are other treatment programs that would cost the
(indisc.).
REPRESENTATIVE ROKEBERG explained that the cost of imprisonment,
up to $2,000, is required to be paid by the prisoner. The court
shall include the costs of imprisonment as part of the judgment.
The permanent fund dividend requirement is the same as [for
reimbursement of treatment]. An appropriate place for a person
receiving certain imprisonment does not mean a residential
treatment facility or hospital.
Number 1993
REPRESENTATIVE ROKEBERG stated that there is case law in Alaska,
called the Nygren Credit Law, that says if the offender avails
himself or herself of treatment, he or she will receive good
time credit for the sentence while in [treatment]. These
[treatment and imprisonment provisions] prohibit this, in
certain instances, because many people are "gaming the system."
For example, he said, if someone gets "busted" for DWI, and his
or her attorney says "Go down and pay for a treatment program,"
by the time the offender gets to the arraignment, he or she
might have enough Ngyren credit to "walk." So, it is "gaming
the system" if someone has money, proper counsel, and is able to
do it. He said, "We want to be able to cut that off and not
allow people to use the system for their own benefit."
REPRESENTATIVE ROKEBERG said that the bill phases in a ten-year
"look-back" period. Currently, there is a five-year look-back
period. He said that at first "we" tried to repeal both of the
look-back periods, but the fiscal notes went "right through the
roof." This means that if someone was to incur two DWI
convictions within a five-year period, and at the sixth year the
person had a third conviction, the person would be starting over
[the first two DWI convictions would not count] again.
Therefore, the courts would not look at this person as having a
class C felony. But, if one had three convictions within five
years, that person would be guilty of a class C felony. So a
[five-year look-back period] is incongruous. He said:
If you get your third "bust" at five years and one
day, you got a lesser sentence than the person that
got picked up the day before [the five-year look-
back], who is a felon because of that.
Number 2072
REPRESENTATIVE ROKEBERG reiterated that this bill repeals the
five-year look-back period, and institutes a ten-year look-back
period that has similar rules. "We" are trying to phase this in
to attempt to minimize the impacts due to the law that was
passed in 1995 [the third DWI conviction becomes a felony, and
increase of penalties]. This was a major recommendation of the
Task Force. It also allowed people to be in the system, whereas
otherwise they might delay court hearings or say, "You stood me
up on that." "We" need to get away from that. The ten-year
look-back period makes the third offense increase to a class C
felony. The fine for this is doubled to $10,000 from $5,000.
REPRESENTATIVE ROKEBERG pointed out that the minimum sentence of
imprisonment increases from 120 days to 240 days if the person
has been previously convicted twice. If the offender was
previously convicted three times, the imprisonment goes from 240
days to 480 days. If the person has been previously convicted
four or more times, the imprisonment goes from 360 days to two
years. This is one of the larger costs because the
incarceration time served by multiple offenders is basically
doubled.
Number 2170
REPRESENTATIVE ROKEBERG explained that in the case of a felony,
the court is to permanently revoke the driver's license, subject
to certain instances that are laid out in the bill. Watercraft
is also added to the list of what must be forfeited if it is
used in the offense. He pointed out that this bill names
forfeiture as a mandate, not a discretionary element for the
judge. This has given the Department of Public Safety "a little
bit of heartburn" because of some of the problems. He noted
that the municipalities of Anchorage and Fairbanks have full
forfeiture at the second offense level. The fiscal note from
the Department of Public Safety has provisions of cost for
Anchorage and Fairbanks. He said, "One of the philosophies of
this legislation is to remove that habitual offender from their
vehicle."
REPRESENTATIVE ROKEBERG further explained that the bill requires
the court to order the surrender of registration plates by the
owner or co-owner by the close of the next business day. If not
surrendered, any co-owner may not re-register the vehicle until
such time that is proved to the department, that the person did
not know the plates needed to be surrendered and twice the
registration fee has been paid.
REPRESENTATIVE ROKEBERG pointed out that another provision in
this bill, the Implied Consent Statute, was not intended to
prevent police search warrants. A search warrant can be
obtained when it is necessary to draw blood [from a person]. In
other words, the impairment standard will decrease from the
current .05 to .04 [BAC]. Currently, there is a law that one
can be charged with Driving While Impaired at .05 [BAC]. A
recommendation of the Task Force is that there is clear
notification of a person's right to an independent test. So,
for the BAC test, a person can ask for an independent test and
get it. The bill also adds a new section that authorizes police
to obtain a blood sample when exigent circumstances prevent the
police from administrating a breath test.
REPRESENTATIVE ROKEBERG said in coordination with supreme court
and appellate court rulings in the state of Alaska, the bill
also establishes a repeat offender status system, effective July
1, 2002. This would consist of a database that would be
accessible to the public for the purpose of determining if a
person is prohibited by law from registering a vehicle. This
would put the onus on new dealers, not the secondary market. It
would also put the responsibility on the people at the DMV,
where there will be a "denial of registration." In short, if
someone has a revocation and is a habitual offender, that person
will be on the register. It is similar to the sex offender
registry, but this one should be a lot simpler and cheaper to
operate. He went on to say that the effective date of this
legislation [HB 4] is July 1, 2001.
Number 2293
REPRESENTATIVE ROKEBERG remarked that there are other elements
that he would consider part of the whole package that will be
before the legislature this year. He believes the "crown jewel"
of that legislation is the wellness court or a pilot program [HB
172] that would replace Judge Wabanaker or be in coordination
with Judge Wanamaker's district court activities, in which he
prescribes naltrexone, a drug that inhibits people's cravings
for alcohol. This has been working effectively in Anchorage,
where a new wellness court concept will be introduced with
appropriate support and staffing, and a large allocation of
monies for treatment programs as well as wellness courts.
REPRESENTATIVE ROKEBERG declared that his intention with this
particular bill, which he is working on it with the Speaker [of
the House], is to provide a diversionary program at the third-
offense level, without aggravators. This program would be for
someone who was arrested for the third time, facing a felony
offense. This offender can go into a wellness court program in
which he or she spends a year to a year and a half under the
court's treatment and regime. He said that he has been very
impressed by what he has witnessed and researched regarding
wellness courts. He mentioned that he spent last Friday
afternoon observing Judge Wanamaker's courtroom. He also had a
work session with members of the court and various branches of
state government. The court uses various methods including
house arrest, electronic monitoring, and group programs,
including the NOW (ph) Program. This program, which is being
operated for free by a man who will be getting a grant for $200
a month, consists of naltrexone users. It's a kind of "nickel
and dime way" that the courts can put together. He said:
I think it's time for the state to throw its full
resources behind that door as well as establish
additional pilot programs in ... the Bethel area, or
another rural area, to help with the significant
problems of alcohol abuse and so forth in the rural
areas of the state. I think that bill is going to
have a hefty price tag, but I think we can bring it in
at a reasonable figure.
Number 2400
REPRESENTATIVE ROKEBERG remarked that House Bill 39, which came
before the House Transportation Standing Committee, was unfairly
criticized in the press, because there had already been
agreements about which bills would carry what legislation. He
said that Representative Kott's bill had some important
elements, including the ones relating to mandatory insurance and
other provisions. In short, many of the provisions that were
taken out of the original HB 39 are now in HB 4. He said, "I
think Representative Kott was unfairly characterized about
limiting the will of this legislature and people in the state,
in terms of punishing these defendants."
REPRESENTATIVE ROKEBERG summarized by saying there will be a
minimum of three or four bills [pertaining to alcohol and
driving]. He mentioned that Representative Green has a bill
concerning IDs and driver's licenses, which deserves some
review.
TAPE 01-13 SIDE B
Number 2462
REPRESENTATIVE OGAN stated that are a couple of issues that
stand out for him in HB 4: DUI versus DWI, and probable cause
versus reasonable grounds. He said it seems that anyone who
consumes an alcoholic beverage and drives, whether legally past
the limit or not, is driving under the influence. This is
because any amount of alcohol, [even] one beer or one glass of
wine, depending on the person and tolerance level, somewhat
influences a person's ability to drive. He asked if this [HB 4]
gives any kind of legal change. He explained:
We are giving probable cause to the police to stop
anybody that might have come out of a bar, for
example, because if they come out of a bar, it's
probably probable cause, and if they get in the car,
they're probably going to be driving under the
influence, whether or not that's a legal influence or
not. I'm a little worried about that.
He asked Representative Rokeberg to explain what the change in
the standard of proof in the bill is regarding probable cause
versus reasonable grounds.
Number 2405
REPRESENTATIVE ROKEBERG replied that "probable cause versus
reasonable grounds" is an interesting legal question. It is
case law in Alaska that reasonable grounds equals probable
cause. The reason for changing the statute is that law
enforcement- in particular, the Anchorage Police Department who
are on the front line enforcing this law- says the statute needs
to be changed. Constitutionally, probable cause is a higher
standard than reasonable grounds, but not in Alaska, because the
courts have declared them equal. Therefore, it is better to
have the probable cause standard in the statute. He suggested
that Mr. Guaneli from the Department of Law or someone else
could explain this in greater depth.
REPRESENTATIVE ROKEBERG stated that in response to the name
change [DWI to DUI], Mr. Guaneli had mentioned that he could
remember at least three names under Alaska Statute that dealt
with drinking and driving. These included OMVI (Operating a
Motor Vehicle While Intoxicated.) So, changing the name has had
a bit of tradition in this state. In short, it [DWI to DUI] is
a nomenclature change. He reiterated that this makes sense
since the rationale behind it is that "we" are lowering the BAC
standard from .10 to .08. "We" want to educate people and let
them know that "there is a new standard and we're calling it a
new crime ... because it is a new crime in terms of our
measuring."
Number 2290
REPRESENTATIVE KAPSNER applauded Representative Rokeberg,
members of the Task Force, and citizens for their effort in
bringing this up. She said this is a very worthy cause, but,
expressed curiosity about some of the mechanics of the bill.
She asked what exigent circumstances would be needed to allow
police to obtain a blood test for evidence.
REPRESENTATIVE ROKEBERG said "a broken breathalyzer machine,"
which was cited in Sosa v. State, Alaska Supreme Court, as a
prime example.
REPRESENTATIVE KAPSNER asked for an explanation of an interlock
device and where this will apply.
REPRESENTATIVE ROKEBERG replied that this is a device that is
added to the ignition switch of one's car, which requires the
person to blow into it to pass a BAC test before being able to
turn the key to turn the car on.
REPRESENTATIVE KAPSNER asked if there are automobiles in the
state that use this device.
Number 2234
REPRESENTATIVE ROKEBERG replied that the Department of
Corrections indicates the state does not have this device
because of a lack of a vendor. The state had a vendor, who then
backed out. He said that for some reason the Department of
Corrections is not comfortable with electronic monitoring and
similar devices. Therefore, the legislature has been pushing
these elements for a number of years. "We" have to get the
message across to DOC [Department of Corrections] that "we" want
these things to happen. He said, "If we mandate this stuff in
statute, we will build it and they will come. There will be a
vendor that will be able to do this." Representative Rokeberg
said he thought the possibility of someone, who was not
intoxicated, blowing into the ignition key and the key freezing
up. However, the interlock device program is in effect in
places like Michigan and other northern and Midwest states that
are colder than a lot of parts of Alaska. He said he thinks
"we" can do that [interlock device program] in Alaska and
accomplish a good thing to make "these people that are using pay
for it."
Number 2191
REPRESENTATIVE WILSON commented that [the bill] is wonderful,
but it's overwhelming to "figure out every little aspect." She
referred to the section regarding offenders listing their name
on a registry. She asked if this was something new, "how much
involved is that going to be," and how long it would take to put
into place.
REPRESENTATIVE ROKEBERG said he would have to defer to Mary
Marshburn, DMV, for some of the technical implementation
questions that might be asked.
Number 2136
REPRESENTATIVE KAPSNER referred to Section 46 in Version P. She
stated that this section requires the state to seek forfeiture
of a motor vehicle [used] in committing a DUI. She asked if
this included snow machines.
REPRESENTATIVE ROKEBERG replied, "I think so," but said he would
have to defer to his "expert" [Janet Seitz]. He then said the
bill is applied to propelled vehicles including watercraft,
three-wheelers, ATVs [all-terrain vehicles], and snow machines.
REPRESENTATIVE KAPSNER asked if there was a chance that the
offender could get his or her vehicle back after it was
forfeited.
Number 2102
REPRESENTATIVE ROKEBERG said the vehicle is gone after the
second offense, but one could buy it back.
REPRESENTATIVE KAPSNER asked what would happen if the vehicle
[that the offender was driving] did not belong to him or her.
REPRESENTATIVE ROKEBERG answered that then the vehicle would not
be forfeited. However, there are some issues around co-
ownership for which he would defer to Ms. Seitz.
Number 2078
JANET SEITZ, Staff to Representative Rokeberg, Alaska State
Legislature, commented that provisions of the bill state that if
there is a co-owner, he or she can re-register the vehicle.
REPRESENTATIVE ROKEBERG said, "We need to have true punishment.
People are not getting the message."
Number 2073
REPRESENTATIVE MASEK commented that if [the legislature] adopted
the .08 [BAC standard] now, "we" would receive $850,000. Each
year after this, the funding would decrease until it came to
zero, which would probably be in FY 07. Funding will begin to
be lost in FY 02- FY 03, at $2 million.
REPRESENTATIVE ROKEBERG specified that $3.5 million would be
lost starting in FY 03, $4 million in FY 04, and so forth.
REPRESENTATIVE MASEK said yes, and if it [.08 BAC standard] is
never adopted, $8-$14 million will be lost annually.
Number 2022
REPRESENTATIVE ROKEBERG confirmed this statement. He said:
That doesn't factor in what I call the "Congressman
Don Young effect," either. We have a "Ted Stevens
effect on the economy," but ... [with] Congressman
Young assuming the chairmanship of the [Committee on]
Transportation and Infrastructure in Congress, I
suspect that our percentage of funds could go up. So,
we would be at greater loss [if .08 standard was not
implemented].
Number 2005
REPRESENTATIVE KAPSNER referred to page 19, [lines 6 and 7] in
Version P, which says, "[The cost of] treatment required to be
paid to the state under this subsection may not exceed $2,000."
She said she was concerned that the wording might cause
insurance companies to not pay anything over $2,000 for
treatment.
REPRESENTATIVE ROKEBERG deferred to Ms. Seitz.
Number 2000
MS. SEITZ replied:
This is the amount that the offender has to pay to the
state. It's not the amount the insurance company
would have to pay for the treatment. But it's what
the offender has to pay to the state for providing the
treatment.
REPRESENTATIVE ROKEBERG commented that presumably, the offender
would be using the insurance monies before he or she would have
to reimburse the insurance company. But it doesn't always
happen this way. Sometimes the Department of Corrections is
able to get reimbursement from private carriers if there was a
spousal or dependent medical insurance policy in place.
Number 1961
REPRESENTATIVE KAPSNER stated that some treatment can be $8,000-
$9,000. So, she wanted to make sure that people who have
insurance have their insurance premiums paid for.
REPRESENTATIVE ROKEBERG remarked that if a wellness court were
established in an area such as Bethel, more resources would be
put into that community. This might cause the average cost [of
treatment] to decrease and make it "more accessible to other
folks."
Number 1943
REPRESENTATIVE KOOKESH expressed his concern regarding vehicle
forfeiture occurring on the second offense, especially with the
ten-year look-back period. He asked for information on what
other states and jurisdictions do in regard to [vehicle]
forfeiture.
REPRESENTATIVE ROKEBERG said that a number of states have
vehicle forfeiture, but he would defer to Ms. Seitz.
Number 1926
MS. SEITZ replied that she could only talk about what was
happening in the municipalities of Anchorage and Fairbanks.
These areas have vehicle forfeiture on the second offense, in
which cars are taken away and impounded. Currently, if one is
charged under state law (not under municipal law), the offender
does not have to forfeit his or her vehicle on the second
offense. One does have to forfeit the vehicle under state law
on the third offense. So, if someone is living in the
Municipality of Anchorage and receives a second DWI, his or her
car is forfeited. She mentioned that Juneau is looking into the
forfeiture program, but that she was not sure if it was
implemented or not.
Number 1890
REPRESENTATIVE KOOKESH remarked that he was uncomfortable with
that [forfeiture program on the second offense], because there
is a huge expense associated with it. He said:
I want to get people off the streets too; I don't want
them to drive. But I think that if you put somebody
in jail ... on the second offense and [for] more time
on the third [offense], ... that the third ought to
include the forfeiture. But I'm willing to be
convinced otherwise.
Number 1866
REPRESENTATIVE KOOKESH, in response to a request by
Representative Rokeberg, reiterated that he wondered what other
jurisdictions did on the forfeiture provision, including if it
was done on the second offense.
REPRESENTATIVE ROKEBERG said, "We'll look into that and get
back to you," by the time it goes to the House Judiciary
Standing Committee.
REPRESENTATIVE MASEK asked who pays the cost of a vehicle being
forfeited and impounded.
REPRESENTATIVE ROKEBERG deferred to Mr. Smith, who would testify
on that point. He then said:
Presumably, the state would pay them and then they
would get reimbursed by the sale of the vehicle.
Anchorage breaks even. I don't think the troopers
think it will in outlying areas of the state, so
that's a point of contention right now.
Number 1830
REPRESENTATIVE OGAN asked if the ten-year look-back period is a
"retroactive thing" in which the time period is being raised
from five years to ten years.
REPRESENTATIVE ROKEBERG specified that the five-year and ten-
year look-back periods are in law now. The number of
convictions and how they are counted makes up the five-year
look-back period.
Number 1798
REPRESENTATIVE OGAN wondered if there had been any discussion
concerning the issue of double jeopardy and looking at previous
convictions. For example, if someone has "a previous conviction
and all of a sudden we pass a new law, and then all of a sudden
that last conviction counts against this conviction, is there a
double jeopardy?"
REPRESENTATIVE ROKEBERG replied that he did not think so, but he
would have to defer to Mr. Guaneli [Department of Law]. He said
that this is a new offense, "if you've done it before, you've
got a pattern, then it becomes an aggravator...."
REPRESENTATIVE KAPSNER asked if prior records from other states
would be looked at.
REPRESENTATIVE ROKEBERG confirmed this statement. He said there
are some provisions that need to be cleared up.
REPRESENTATIVE KAPSNER asked if "our" system is compatible with
all other states.
REPRESENTATIVE ROKEBERG referred to testimony before the House
Judiciary Standing Committee where there were questions related
to this issue. The Department of Public Safety's "inter-tie and
their system" should be able to do that. However, he was not
sure if this was included in state records elsewhere. So, if
someone were convicted in another state, the treatment elements
wouldn't necessarily be included in the records.
Number 1745
REPRESENTATIVE KAPSNER referred to Section 26 of Version P. She
asked what adding "an alcoholic beverage" to line 24 does.
MS. SEITZ replied that this was to address a concern of the
Department of Law that [the department] would lose the ability
to include other intoxicating substances [besides alcohol]. So,
"alcoholic beverage" was put in the language, and they "removed
the deletion of intoxicated substances so it was clear that all
alcoholic beverages, intoxicating substances, or controlled
substances" were included.
REPRESENTATIVE KAPSNER asked if this could also refer to people
who are inhaling.
REPRESENTATIVE ROKEBERG confirmed this. He said that "we
expanded it rather than contracted it," which was his
interpretation.
Number 1682
MARY MARSHBURN, Director, Division of Motor Vehicles (DMV),
Department of Administration, stated that the DMV has been
working with Representative Rokeberg and his office on alcohol-
related questions and issues, and technicalities regarding how
the laws work (that affect DMV), for a number of months. The
DMV has also had conversations with members of the Task Force,
due to the high profile of DWI issues last summer. She said
that the DMV provided a significant amount of information to
Representative Rokeberg. The DMV has helped him craft some
pieces of HB 4. The DMV has not had enough time for a detailed
or critical analysis of Version P, because they received it
after the close of business on Friday night. She reiterated
some members' concern that this was a large and important bill.
MS. MARSHBURN said a number of sections in the bill impact the
DMV from an everyday work standpoint and the fiscal impact. The
DMV still has questions on a number of sections. She reiterated
that they have not had a chance to look at or discuss with
Representative Rokeberg's office the new sections in Version P.
Number 1580
MS. MARSHBURSN stated that some of the sections that concern the
DMV include Section 6, Version P, where the DMV must refuse to
register a vehicle if the applicant does not have a valid
driver's license or if that license has been suspended or
revoked. Also of concern are Sections 12 and 15 of Version P,
which are interrelated by creating a "two-level first offense,"
by having court sentencing alternatives and changes to the
limited licensing provisions. She said the DMV needs to look at
these sections "one step at a time, because there appear to be
areas that need a little more working out." Section 26 in
Version P, which changes the BAC from .10 to .08, will have a
fiscal impact for the DMV. Ms. Marshburn said she thinks these
costs have been forwarded.
MS. MARSHBURN stated that the DMV needs to take a closer look at
Section 31 in Version P, which revokes vehicle registrations in
certain situations. Section 33 in Version P requires the
surrender of plates for a second offender. It is her
understanding that it mandates the restoration of a license in
certain circumstances. She said that one of the conditions of
the restoration of that license is for the DMV to do a criminal
background check. The DMV is not defined as a criminal justice
agency, however; they don't have access to criminal backgrounds
except through the Department of Public Safety or the FBI
[Federal Bureau of Investigation].
MS. MARSHBURN referred to Representative Wilson's question
concerning the DWI registry. She said the DMV has to discuss
this, but it would be similar to the sex offender registry. It
would list felony DWI offenders. There are concerns in
developing this registry, which would be open to public access
in some manner, according to the provisions of the bill. This
may be implemented by using a simple query. For example,
someone could input, "Does Representative Scalzi have an ability
to register a vehicle"? In turn, one would receive a simple
"yes" or "no" record. She said the DMV has not covered this
ground yet.
MS. MARSHBURN said other issues of concern for the DMV include
obtaining correct and complete records from the court. They
don't want to put someone on the list who is not a felony DWI
offender. They are also concerned with the period of time
during which offenders are kept on this list, the process of
removing them from the list, and issues of security or access.
She summarized by stating that what this looks like will, in
turn, affect what it is going to cost.
Number 1385
MS. MARSHBURN referred to Representative Ogan's questions
concerning the existing look-back periods. She explained that
right now the five-year look-back period is for the purpose of
computing a felony. Currently, if someone has three DWI
offenses within a five-year period, he or she is a felony DWI
offender. The purpose of the ten-year look-back period is to
compute multiple offenses. For example, if someone has two
[DWI] offenses within the last five years and a third offense
within eight or nine years, that person is a third-time
offender. There is a different classification of crime, a
different penalty [for the ten-year look-back].
MS. MARSHBURN reiterated that the DMV does not have a definite
analysis or testimony. But, they wanted to lay out questions
and concerns about the bill. At some point, the DMV will have
the fiscal impacts of the bill. She said that "we" appreciate
that Representative Rokeberg and his staff have involved the DMV
from the beginning in conversations dealing with HB 4. It makes
"our" job easier when we can work with people on the "front
end." She mentioned that she planned to meet with Ms. Seitz to
further discuss these issues. She also pointed out that the DMV
does not want to hold up the movement of this bill from the
House Transportation Standing Committee.
Number 1278
DEAN GUANELI, Chief Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, stated
that when he testified to the House Transportation Standing
Committee a few weeks ago on the general topic of alcohol and
driving, he identified a number of goals that the administration
has for addressing these issues. One of these goals was to make
some improvement in the state's bootlegging laws. He said he is
happy to see that some of the suggestions that "we" made and
consulted with the legislature about have found their way into a
bill that's working its way through the legislature. He said
that one change that was identified dealt with underage drinking
relating to an Alaska Supreme Court decision and opinion, which
did not adopt rules to fix that problem [underage drinking]. He
mentioned that legislation on this issue might be introduced.
MR. GUANELI referred to Representative Rokeberg's notion of
therapeutic courts. He said that these courts would deal with
drunk driving offenders in a particular way by using new drugs
to help people with their craving for alcohol. He mentioned
that this legislation is "in the works" as well. He said that
"we" also identified a need for an increase in the alcohol tax
to pay for all of this.
MR. GUANELI went on to say that in addition, there are a number
of goals that the administration had that dealt directly with
drinking and driving. One of the goals was to reduce the
threshold level from .10 to .08 [BAC]. He said that "we" are
happy to see that this bill incorporates this issue. He stated
that "we" support the gradual expansion of identifying people
who have committed their third drunk-driving offense,
prosecuting them, convicting them, and labeling them as felons.
There are more options available, once this is done. These
felons are under closer scrutiny, by having a probation officer.
This is a good process, and "we" are happy to see how it has
been adopted in this bill. He said that technical fixes were
proposed for drunk driving laws relating to search warrants,
drawing blood, and collection of evidence. These have also been
adopted in this bill. "We" also identified the need for
clinically appropriate treatment for DWI offenders. He thinks
that people in the criminal justice system believe that there is
"only a limited amount of what can be done by locking people up.
Treatment has to be part of the solution."
MR. GUANELI commented that there are aspects of the bill that
"we" have some concerns with, but the [administration] is
continuing to work with the sponsor on this. He mentioned that
some of these concerns would be addressed in the House Judiciary
Standing Committee and elsewhere. He referred to a concern that
Representative Rokeberg mentioned, which was the issue of adding
six months to someone's sentence if the offender is above a
certain BAC level. He said the fiscal note for that is beyond
what anyone is willing to pay, but that these issues can be
worked out. He believes that by working on the bill in the
House Judiciary Standing Committee, and as the bill moves
forward, "we" will get a bill that everyone can support.
MR. GUANELI remarked, "All of this is going to have a cost."
Reducing the BAC from .10 to .08 has a cost that will affect the
Department of Corrections, in particular. Expanding the number
of people who are labeled and treated as felons has a cost.
Providing clinically appropriate treatment to offenders has a
cost, particularly to the Department of Health and Social
Services.
Number 1021
MR. GUANELI reiterated the message that he gave three weeks go
[at the House Transportation Standing Committee meeting] that
the fiscal notes of the departments have to be carefully
considered. He said these initiatives, that are great and which
the administration supports, "need to be funded or else the
expectation that I think the public has, that something will be
done, is really going to be dashed. I think that would be
unfortunate."
Number 0986
REPRESENTATIVE OGAN asked for the difference between DUI and
DWI.
Number 0977
MR. GUANELI replied that the legislature can call offenses
whatever it wants. He said he would be concerned if there were
definitional changes that went along with this. This change
simply deals with changing the title of the crime. It has no
legal significance. He stated that if this helps the public
understand what is involved, then it is fine.
REPRESENTATIVE OGAN stated that his concerns deal with the
probable cause section of the bill. This section says that if a
person is driving under the influence, the police have a
probable cause to stop and check them. He said that he did not
know if this means "you are past the legal limit of what you're
allowed to drink." He asked if there was a change in the
probable cause that would cause a police officer to stop
somebody. He said that technically, anyone seen coming out of a
bar, would [provide] probable cause "that they're under the
influence of alcohol to some extent, whether it's legal or not."
He expressed concern that that "every single person coming out
of a bar is now subject to probable cause for a stop and a
search and seizure and screening for alcohol." In short, he
asked, "Does it change the probable cause standard of proof at
all, with that change of description?"
Number 0856
MR. GUANELI answered that when dealing with statute terms, one
has to consider the "common meaning that you might look up in a
dictionary or that people on the street think of as under the
influence or intoxicated," versus the legal significance. These
words become "terms of art" after a while. He agreed with
Representative Ogan's comments that most people would say, "You
take one drink, and you're to some extent under the influence."
However, the law and instructions that judges give juries in
assessing these, and what police officers need to consider, is
whether, due to ingestion of alcohol, a person is driving with a
degree of caution that a reasonable and sober person would be
driving [with].
MR. GUANELI commented that if a person has had one drink
[alcoholic beverage], his or her BAC would be between .02 -.04
depending on weight. Most people can essentially drive the same
at that level as they can when they are sober. This (indisc.)
used for commercial vehicles because they are more difficult to
drive. He said:
What the police officer has to determine is, is there
some basis in the law for pulling this person over.
That means that I have grounds to believe that that
person is not driving in the same way as a reasonable,
sober person who is driving. In other words, there
has been some weaving down the road, maybe they're
going the wrong way on a one-way street. Those are
the kinds of things that would justify pulling
somebody over for drunk driving.
Often, however, what gives the officer grounds to pull
somebody over is not necessarily that somebody is
driving so badly but they have a taillight out, a
headlight out, or some other equipment violation. We
pull somebody over, roll down the window, [and] all of
a sudden you're hit with this odor of alcohol, and
then you've got probable cause to do something
further. But, it's not simply a matter of being able
to stop everyone who walks out of a bar. That would
not be right.
MR. GUANELI stated that one of the most litigated issues in the
courts is if the officer had cause to pull the person over. In
other words, from the officer's observations of the person's
driving, was there cause to pull the person over. The courts
have set clear guidelines on what this means, and "it's not
simply walking out of a bar."
Number 0659
REPRESENTATIVE OGAN asked what percentage of DUI's come from
public drinking establishments.
MR. GUANELI replied that he did not know.
REPRESENTATIVE OGAN suggested that the Department of Public
Safety could answer this question. He also asked what is the
"highest percentage of arrests during particular hours."
MR. GUANELI said he wanted to defer to the Department of Public
Safety for these answers.
Number 0577
DEL SMITH, Deputy Commissioner, Department of Public Safety,
mentioned that Lieutenant Steve Dunnagan, Department of Public
Safety, is on teleconference if needed. He said that he wanted
to address a few items. He stated that having been an Anchorage
police officer for 20 years prior to state employment, he has
had the occasion to make a number of DWI arrests and impound
offenders' vehicles. He left the department prior to the start
of the forfeiture process. However, the sponsor [Representative
Rokeberg] referred to "our" concerns about statewide forfeiture
impoundment. He said that he does have concerns. He said that
Anchorage, Fairbanks, Juneau, and Ketchikan have the
"substantial infrastructure and ability to hook user record,
pull the vehicle in places to store, those kind of things."
There are areas in the state that are not able to do this. Mr.
Smith said:
It was substantially easier in Anchorage for me to
call the (indisc.) and have it there in three minutes
than take it to secure storage. I've taken people's
vehicles that may or may not be returned to them or
may be required to be sold. I am concerned about
where we store them, and how we store them, and how
secure they are. [I] don't want them going down in
value if we're going to try to sell them or have to
give them back to an individual after some litigation.
Having said that, certainly if the law says we have to
do it, we'll implement a process to do that.
Number 0479
MR. SMITH stated that "we" support doing everything that can be
done about DWI and the "carnage it reeks on our highways."
There are no Alaska State Troopers who like to "go and pick up
pieces of bodies." He referred to the past summer, which showed
a significant amount of things needed to be done [concerning
DWI]. He said:
I recognize that relative to first-time offenders, at
least from the statistics I'm aware of, the state's
doing a pretty good job in deterring them. They drop
off dramatically. But there clearly are people that
continue to drive after that first offense that need
to have a serious wake-up call.
REPRESENTATIVE MASEK called an at-ease at 2:40 p.m. The meeting
was called back to order at 2:43 p.m.
TAPE 01-14 SIDE A
Number 0052
REPRESENTATIVE OGAN reiterated to Mr. Smith his questions
concerning the percentage of DUI's that come from public
drinking establishments and the hours during which there are the
highest number arrests.
Number 0062
MR. SMITH replied that his suspicion would be that people are
often picked up leaving parties at private residences. However,
he suspects that more people go out to establishments in the
evenings, and then navigate their way back home instead of
taking a cab. He did not know the exact number of people who do
this. He mentioned that establishments in Anchorage used to be
able to serve alcohol until 5 a.m. A municipal ordinance
changed this to 2 a.m. As a midnight shift traffic officer, he
saw a "substantial spike" in drinking and driving after
midnight. At times, there were [drinking and driving
activities] as late as 6 to 7 in the morning. But, this
probably occurred because of the 5 a.m. time frame.
MR. SMITH remarked, "There is probably some traffic out of
Anchorage, out to other areas that have a 5 a.m. closing time
now that Anchorage closes at 2." He said he is aware of
possible legislation that would restrict the closing time to 2
a.m. around the state, which he thought would be a good idea.
In short, he believes in the "general sense, not
scientifically," that more DUI arrests occur after midnight. He
said that he did not know if, under most circumstances, "we" can
capture where somebody was drinking, unless, for example, "you
... are sitting at Four Corners in the valley, and the person
pulls out, runs a stop sign, and [you] say, 'I saw this
individual leaving the Four Corners Bar,' and that's in fact, in
the police report." Most police officers say anecdotally that
when they stop someone and ask if the person had anything to
drink that night, a person will say that he or she had two
beers, for example, at a friend's house.
Number 0223
REPRESENTATIVE MASEK asked when the municipal ordinance in
Anchorage was changed from 5 a.m. to 2 a.m.
Number 0245
MR. SMITH replied that he believed it occurred sometime in the
years 1983-1984. The ordinance happened a few years after he
left, which was in 1988.
REPRESENTATIVE MASEK commented, "It's been quite a few years and
the population has increased in Anchorage quite substantially.
If it's been [enacted] that long, I suppose, today I don't know
what impact it really has on the issue."
REPRESENTATIVE OGAN asked Mr. Smith if he saw a significant drop
in DWI arrests and actions, and if he was with APD [Anchorage
Police Department] at the time of the change.
MR. SMITH replied, "Yes, I was." He went on to say that the
average street cop had thought that the 2 a.m. time change would
"bunch people up more" [when they left the bars], as opposed to
people filtering out from between 2-5 a.m. under the 5 a.m.
closing time. This concern "did not show itself," he added. He
thinks that people started leaving [the bars] earlier [before 2
a.m.] because they knew the closing time was changed. He
reiterated that it has been 13 years since he was in Anchorage
and longer than that since he has driven a patrol car.
Number 0357
REPRESENTATIVE MASEK said:
I believe the boroughs do have the ability, at their
governing power, to impose an ordinance that would be
[a] borough wide vote, if they wanted a change, and
restrict their bars from 5 to 2. They do have that
ability to do that. We don't need to give a state law
to do that if I'm under ....
MR. SMITH answered that he did not think the correct term is
"local option," but he would have to defer to lawyers. He said
that he thought Representative Masek's comments were true.
MR. SMITH referred to an earlier question regarding who pays for
impoundment. Currently, if a person is stopped and his or her
vehicle is impounded because of DWI, the impoundment and towing
fees are borne by the individual. State troopers or local
police are not responsible for the fees. This is assuming that
it is not a forfeiture situation for Anchorage or whatever area
is doing it. In order to retrieve one's vehicle, the offender
has to pay the towing fee. One has to pay a storage fee as well
if the vehicle is in storage for more than one day.
Number 0445
REPRESENTATIVE KAPSNER commented that other states are looking
at "profiling." She asked what percentages of people from
different ethnic backgrounds are getting pulled over. She
wondered if the department had any indication of how many Alaska
Natives are getting DWI's.
MR. SMITH said he did not know.
Number 0484
REPRESENTATIVE KAPSNER asked if the Department of Public Safety
was looking at profiling. For example, by regulation, police
officers could do profiles by plugging in the ethnic background
of the driver. She asked if this [addressing profiling] would
need to be done legislatively.
MR. SMITH remarked that the Department of Public Safety could
enact this, but right now it is not happening. He said that
from his view of national policing, profiling occurs in response
to a perceived problem. To his knowledge, there are rules and
regulations that the Alaska State Troopers operate by. These
are not based on [profiling procedures]. He stated that he
thought Representative Kapsner was referring to profiling that
is used on an incidental basis, for example, "who happens to
fall into these things, as opposed to saying 'There goes a
Native or some other kind of person?'" The Seattle Police
Department is experiencing this [being accused of profiling] now
due to allegations that they targeted particular individuals.
Usually a police report indicates race only if it is based on
observation [of the incident], as opposed to describing whom the
person is.
Number 0565
REPRESENTATIVE MASEK asked if it would be possible for the
courts to have this information once offenders are prosecuted,
and, if so whether it would be available for the public to view.
MR. SMITH said he would assume it was possible, but he did not
know how this would work. He suggested asking the courts for
that information.
MR. SMITH mentioned that Anchorage also established different
closing times on the weekends. He believes that on Saturday
nights, closing time is 1 a.m. instead of 2 a.m. or vice versa.
The issue of whether this was a useful thing to do probably came
up in the Anchorage Police Department, or the Municipality of
Anchorage, or in discussions by the DUI Task Force.
MR. SMITH referred to Representative Ogan's questions concerning
whether [DWI arrests] happen more in public drinking places or
private locations. He said his perception of the public was
that if someone has had too much to drink at somebody's private
residence, it's far more likely that someone will say "Stay the
night here, I'm not going to let you drive." It would be
difficult for a stranger to step up to somebody in a bar and
say, "You're not going anywhere."
Number 0718
KAREN ROGINA, Alaska Hospitality Alliance, testified via
teleconference:
I am representing the Alaska Hotel and Motel
Association, and the Alaska Restaurant and Beverage
Association. I am here to testify in support of this
bill. I participated on the DUI Task Force here in
Anchorage, along with other members of our industry,
and we believe HB 4 accomplishes many of the goals set
forth by the Task Force, and simply want to voice our
support for the passage of this bill. Thank you.
Number 0751
REPRESENTATIVE OGAN asked if the associations Ms. Rogina
represents would support additional alcohol taxes to pay for
this bill.
MS. ROGINA replied that the purpose of her testimony was to
speak on behalf of the merits of this bill. Regarding any issue
related to payment of it, "we would like to not marry that issue
with this bill."
REPRESENTATIVE OGAN said, "So you don't support it."
MS. ROGINA remarked:
Since the State of Alaska does not allow for dedicated
taxes -- I think that the merits of this bill are what
we are supporting today. I know that I'm kind dancing
around things, but we don't support a liquor excise
tax.
Number 0825
JACK AMON, Volunteer President, Alaska Restaurant and Beverage
Association; Owner, Mark Brothers Cafe; Member, DUI Task Force
testified via teleconference:
I believe that HB 4 moves Alaska in the correct
direction in combating of drunk driving in our state.
The two strongest things that I took from my service
on the DUI Task Force was the (indisc.) of treatment
for repeat offenders and stiffer sentences.
I am always horrified when I read in the newspaper a
story of a horrible accident caused by a drunk driver
with eight misdemeanor convictions and a revoked
license. This repeat offender is the problem drinker
who needs to be targeted. During the Task Force, we
were told that statistically the first offender with a
blood alcohol level of .14 or greater was over 80
percent likely to re-offend.
The industry does remain opposed to the .08 standard.
Alaska has no record of traffic fatalities at that
blood alcohol level. I would urge the committee to
seriously consider that. ...However, if that .08
standard is going to be adopted, I do approve of the
graduated penalties that are in this bill. Overall,
the industry does support this legislation and would
recommend passage. Thank you.
Number 0918
REPRESENTATIVE OGAN asked if the association Mr. Amon represents
supports increasing taxes to pay the fiscal notes for this
legislation.
MR. AMON replied, "There is no linkage allowed in Alaska law to
link dedicated taxes, and at this point, the industry is not
supportive of increases in the alcohol excise tax."
REPRESENTATIVE OGAN said he is well aware of the
constitutionality of dedicated funds. However, the legislature
will have to "write the check to pay the bill," and he was
wondering if these associations were interested in helping to
fund this legislation. He said, "If you support the bill but
you want us to pay for it, you don't want anyone else to, I
guess."
Number 0967
REPRESENTATIVE MASEK stated that Version P [HB 4] would be held
over until Thursday in order to hear more public testimony.
ADJOURNMENT
There being no further business before the committee, the House
Transportation Standing Committee meeting was adjourned at 2:56
p.m.
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