Legislature(1995 - 1996)
03/15/1995 01:12 PM TRA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE TRANSPORTATION STANDING COMMITTEE March 15, 1995 1:12 p.m. MEMBERS PRESENT Representative Gary Davis, Chairman Representative Beverly Masek, Vice Chair Representative Jeannette James Representative Eileen MacLean Representative Tom Brice Representative Jerry Sanders Representative Bill Williams MEMBERS ABSENT None COMMITTEE CALENDAR HB 161: "An Act relating to civil liability for guest passengers on an aircraft or watercraft; and providing for an effective date." HEARD AND HELD * HB 204: "An Act relating to the administrative revocation of a minor's license to drive; creating criminal offenses of minor operating a vehicle after consuming alcohol, a minor's refusal to submit to chemical test, and driving during the 24 hours after being cited for minor operating a vehicle after consuming alcohol; establishing penalties for these offenses; and relating to implied consent to certain testing if operating a motor vehicle, aircraft, or watercraft." PASSED OUT OF COMMITTEE (* First public hearing) WITNESS REGISTER REPRESENTATIVE CON BUNDE Alaska State Legislature State Capitol, Room 108 Juneau, Alaska 99801 Telephone: 465-4843 POSITION STATEMENT: Prime sponsor of HB 161 RAY BROWN, Attorney Alaska's Academy of Trial Lawyers 510 L Street, Suite 603 Anchorage, Alaska 99501 Telephone: (907) 277-5400 POSITION STATEMENT: Opposed HB 161 MIKE PANONE, Former President and current Member Board of Directors of the Alaska Airmen's Association Aviation Complex/University of Alaska 1515 E. 13th Avenue Anchorage, Alaska 99501-4814 Telephone: (907) 272-1251 POSITION STATEMENT: Supports HB 161 MARGOT KNUTH, Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811 Telephone: 465-3428 POSITION STATEMENT: Supports HB 210 JOHN GEORGE, Agent National Association of Independent Insurers 3328 Fritz Cove Road Juneau, Alaska 99801 Telephone: 789-0172 POSITION STATEMENT: Supports HB 161 MIKE FORD, Attorney Division of Legal Services Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau Alaska, 99801-2105 Telephone: 465 2450 POSITION STATEMENT: Provided legal information on HB 161 PREVIOUS ACTION BILL: HB 161 SHORT TITLE: AIRCRAFT/WATERCRAFT GUEST PASSENGER LAW SPONSOR(S): REPRESENTATIVE(S) BUNDE,Toohey JRN-DATE JRN-PG ACTION 02/08/95 271 (H) READ THE FIRST TIME - REFERRAL(S) 02/08/95 272 (H) TRA, JUD 03/06/95 (H) TRA AT 01:00 PM CAPITOL 17 03/08/95 (H) TRA AT 01:00 PM CAPITOL 17 03/08/95 (H) MINUTE(TRA) 03/13/95 (H) TRA AT 01:00 PM CAPITOL 17 03/15/95 (H) TRA AT 01:00 PM CAPITOL 17 BILL: HB 204 SHORT TITLE: NO DRINK BEFORE DRIVING IF UNDER 21 SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR JRN-DATE JRN-PG ACTION 02/27/95 495 (H) READ THE FIRST TIME - REFERRAL(S) 02/27/95 495 (H) TRANSPORTATION, JUDICIARY 02/27/95 495 (H) 5 ZERO FISCAL NOTES (2-ADM, 2-DPS, LAW) 02/27/95 496 (H) GOVERNOR'S TRANSMITTAL LETTER 03/13/95 (H) TRA AT 01:00 PM CAPITOL 17 03/15/95 (H) TRA AT 01:00 PM CAPITOL 17 ACTION NARRATIVE TAPE 95-8, SIDE A Number 000 The House Transportation Committee was called to order by Chairman Gary Davis at 1:12 p.m. Members present at the call to order were Representatives Davis, James, Masek, Sanders and Williams. Members absent were Representatives Brice and MacLean. CHAIRMAN GARY DAVIS announced the agenda was to review HB 161 and hear testimony on HB 204. Chairman Davis indicated the meeting is on teleconference with Anchorage. Chairman Davis asked Representative Con Bunde to present HB 161. HTRA - 03/15/95 HB 161 - AIRCRAFT/WATERCRAFT GUEST PASSENGER LAW Number 012 REPRESENTATIVE CON BUNDE, Sponsor, stated HB 161 should have been titled a "recreational opportunity bill" due to the large amount of people who have boats and planes. He explained pilots and operators of watercraft enjoy accommodating their friends when they are asked to take them for rides. Unfortunately, the operator of the boat or aircraft place their entire personal worth at stake when they take passengers. He indicated, with the way personal injury suits operate now and the way juries operate, if there is an accident, the operator is viewed as having "deep pockets" because they have an airplane or boat. He added anything the pilot has accrued financially would be in jeopardy. Representative Bunde stated HB 161 was designed to protect pilots and boat operators from being sued beyond the limit of their insurance. Also, if the pilot does not have insurance, then the passengers assume part of the liability for taking part in the recreational activity or having the opportunity. REPRESENTATIVE BUNDE asked to clarify some points that were brought up at the House Transportation Committee meeting last week, which he was unable to attend. He referred to page 1, line 13, of HB 161 and requested the addition of the word "negligence" so the statement would clarify some concerns the committee had last week when hearing this bill. He stated the section would then read, "gross negligence, negligence, or reckless or intentional misconduct." He stated this would relinquish any misunderstanding of the terms gross negligence and negligence. He stated the focus of HB 161 is "an Act of God." He presented a scenario of a person paddling their canoe in a reasonably safe manner and a spruce tree falls on top of the canoe injuring the passenger. He questioned the level of responsibility that the operator should have and how much liability should the passenger assume for their own actions. He mentioned that he had spoken with Representative Beverly Masek prior to this meeting and presented a scenario of driving her dog team with a passenger for recreational purposes and encountering a moose on the trail injuring her dogs and passenger. He asked how much liability should be placed on Representative Masek for her passenger's injuries and how much responsibility should be placed on her passenger. Representative Bunde stated if a person is going to partake in many of the recreational activities in Alaska, the passenger should assume a level of responsibility for the risks they choose to accept. He asked if there were questions from the committee. CHAIRMEN DAVIS asked for further questions and announced he would take comments from teleconference. Number 100 RAY BROWN, Attorney with Alaska's Academy of Trial Lawyers, said he appreciated Representative Bunde's clarification and correction with the addition of the word "negligence" under subsection (A) of HB 161. He stated HB 161 was to cover "Acts of God" then legislation already enacted covers a negligent act because to be recoverable (indisc.) from acts that occur, a person has to be negligent. This implies a breach in a duty of care. He indicated in this particular circumstance, Representative Bunde described "Acts of God" would not constitute negligent acts in the first place. MR. BROWN continued to explain if that was the purpose of this legislation, there is no need for the bill but, by adding the word "negligent" on line 13, page 1, this would take care of a lot of their concern on behalf of victims of negligent acts or other (indisc.) that would occur if the legislation had been passed out of committee without the correction. He stated his other concern with respect to Representative Bunde was, as written, HB 161 discourages people from obtaining insurance. He stated the purpose of obtaining liability insurance was to protect each other and more importantly the protection of victims of negligent acts. Another problem with the bill was by not applying mandatory insurance, which should also be read into the bill, a person operating an air or watercraft should have mandatory liability insurance. He pointed out there is mandatory insurance for automobiles. He stated automobiles are less dangerous instrumentality than water or aircraft. He added the other problem is, by capping the exposure of an insurance carrier for any act, a person is encouraging litigation. He indicated he knew of people involved in similar litigation who think lawyers are the main culprits, particularly plaintiff lawyers. Mr. Brown remarked this was not the case and continued to explain if you cap exposure, there is no (indisc.) pressure on insurance carriers to resolve litigation. As it stands, if a legitimate bona fide offer to settle a case is made by an injured party or victim of someone else's act, then the insurance carrier is obligated to act in good faith in resolving settlement within policy limits. He explained this legislation, as written, offers no incentive to an insurance carrier to do so because they would have no bad base exposure. In effect, they could litigate or bankrupt a plaintiff to discourage them in pursuing a legitimate claim with absolutely no exposure on the other end to encourage their settlement of the cases. Number 177 REPRESENTATIVE BUNDE stated HB 161 was a tort reform bill and he acknowledged this would be a concern to trial lawyers who would more than likely oppose the bill. He disagreed with Mr. Brown's statement concerning driving an automobile being less dangerous and stated statistics show being injured in an automobile are far greater than being injured in a aircraft accident. He explained the notion that insurance is required for cars, cannot be compared. He stated when living in an urban area, people are almost obligated to have a car in order to function. He reminded the committee that he is talking about recreation, and stated no one has to go and recreate. This is a vastly different circumstance. He said regarding insurance, at this point it is prohibitively expensive for many people, and the insurance available has relatively low limits. REPRESENTATIVE BUNDE explained that juries on personal injury suits tend to get into the McDonald's hot coffee idea. He stated if a person is insured for $100,000 or $200,000 or higher, the dollar value of these suits can be unlimited. He explained a cap was designed to establish a limit of insurance. He mentioned that liability insurance is generally not purchased to protect the other person, but to protect themselves and their own financial liability. He said if some one chooses not to purchase insurance, he did not feel this bill would encourage that. He explained after talking with many boat and aircraft owners, they choose not to purchase insurance, especially when the insurance prices are high, the limits are low, and there is no reason to assume that a lawsuit would stop at the limits of that person's insurance. He reiterated if someone chooses not to purchase insurance and someone wanted to go for a ride and were made fully aware of the fact the pilot did not carry insurance, it would not be unreasonable to ask the passenger to assume some of the risk involved. He indicated the passenger is not obligated to go and has that option. CHAIRMAN DAVIS asked Mr. Brown if he cared to comment on Representative Bunde's statements. MR. BROWN stated he did not. CHAIRMAN DAVIS introduced Mike Panone. MIKE PANONE, Former President and Current Member, Alaska Airmen's Association, indicated the association represents the 10,000 pilots in the state of Alaska. He stated he supported HB 161 and supported a similar proposal last year. He indicated, from a recreational standpoint, pilots enjoy giving passengers rides. He stated many of the pilots also fly for a living, but this is not covered in HB 161. He mentioned the organization and people he has spoke with statewide, support the idea of HB 161 because it offers a certain amount of protection as well as enhances the idea of personal responsibility for all parties involved and not just the person owning the aircraft. He stated many of his friends would ask to go sightseeing around Mt. McKinley or Mt. Susitna. Mr. Panone said it was difficult to turn these people down due to insurance limitations. He added, if people ask to go for a ride he warns them that they, the passenger, will accept a certain amount of responsibility. MR. PANONE explained without HB 161, if something does go wrong, the pilot would end up being the target for a lawsuit. Mr. Panone made reference to Mr. Brown's comments on the fact HB 161 encourages no insurance. He indicated from his experience in talking with recreational pilots about whether or not to carry insurance, if a pilot carries insurance and something goes wrong, whoever sues him will try to sue for the maximum amount possible plus everything he owns. If he does not have insurance, he could be sued for everything he owns. By not having insurance he would save the premiums. He disagreed with Mr. Brown's comment on discouraging the purchase of insurance and felt it was a matter of personal choice. Mr. Panone stated he personally has insurance, but knows a lot of people who do not, and reiterated his support of HB 161. Number 279 CHAIRMAN DAVIS inquired as to the cost of the insurance and the determining factors, such as the size of the plane and number of seats. MR. PANONE explained it was extremely variable. He explained the insurance rates are predominately based on the number of seats in the aircraft, experience, number of hours the pilot has, his ratings, how much experience he has flying in Alaska, and if he has an accident record. He said he thinks it is similar to auto insurance. REPRESENTATIVE BUNDE added there are numerous companies that will not write insurance in Alaska because aviation in Alaska is unique; i.e., landing on lakes, rivers and sandbars. He mentioned, normally when dealing with aviation insurance, it implies paved airport to paved airport. REPRESENTATIVE EILEEN MACLEAN noted that currently the legislature is pursuing a tort reform bill. She asked Representative Bunde how HB 161 impacts tort reform because it deals with insurance coverage. REPRESENTATIVE BUNDE stated that bill was still in progress. He said generally speaking, the bill places caps on personal suffering and the noneconomic awards. He stated HB 161 would not get involved in the pain and suffering cap. It would be dependent on whether the person had insurance and the limits of that insurance. REPRESENTATIVE MACLEAN stated she was in disagreement with Representative Bunde's statement because, first a person would have to have insurance coverage or if the person does not have insurance, then the person has the liability if there are guest passengers on the plane. She then asked if she could direct her concern and question to Ms. Margot Knuth. CHAIRMAN DAVIS stated that would be fine if Ms. Knuth felt comfortable addressing those concerns. He gave her the option of abstaining, since she was here to testify on the other bill. MARGOT KNUTH, Assistant Attorney General, Criminal Division, Department of Law, stated she would rather abstain on Representative MacLean's question at this time. She stated she was with the Criminal Division and acknowledged the Civil Division would be more knowledgeable on this issue. CHAIRMAN DAVIS announced for the record that Representative Eileen MacLean arrived at 1:20 p.m. He noted that Mr. John George, former Director of the National Association of Independent Insurers was in attendance and asked if he had a response to Representative MacLean's question. JOHN GEORGE, Representative, National Association of Independent Insurers, addressed Representative MacLean's question regarding the relation of HB 161 and the tort reform bill that was introduced by Representative Brian Porter. He stated the tort reform bill limits the liability, placing caps on awards for pain and suffering, punitive damages and changes the statutes of limitation, the time in which to file suits. He stated HB 161 would apply to civil liability, but only to the narrow application of where someone in a personal aircraft or personal boat was carrying guest passengers. He stated they are somewhat related but are not that directed to each other. He added the tort reform bill is more expansive and complicated, whereas HB 161 was designed to be fairly simple. Mr. George stated if you are a passenger of a private aircraft or boat, it would not be possible to sue someone unless they have acted in a negligent manner. He stated if the pilot has insurance, he can only be sued for the amount of insurance. He also indicated the tort reform bill applies to commercial and charter operations as well as private airlines. Number 356 REPRESENTATIVE MACLEAN asked why is HB 161 exclusive to air and watercraft carriers and not designed to include railroad or land carriers. REPRESENTATIVE BUNDE stated HB 161 was designed to target recreational use of air and watercraft. He stated land carriers, such as rail and truck, are covered by other liability considerations. REPRESENTATIVE MACLEAN said if HB 161 was designed for recreational use, then shouldn't other modes of transportation be considered recreational. REPRESENTATIVE JEANNETTE JAMES said she sees the problem which has been described as an inherent risk of living. The second part of the problem is whether there is neglect or not, if an injured party sues an operator of a boat or aircraft, and if there is no cause for the suit, then they get a settlement out of court. She asked Representative Bunde if he felt that these two concerns are solved by HB 161 and to what extent. REPRESENTATIVE BUNDE addressed Representative James's concern by explaining that different people are going to have different points of view, depending on how they will be impacted financially. He said having liability insurance may encourage suits because he has heard information that an insurance company will settle for a soft tissue injury, which is something that can neither be proven or disproved, up to $50,000, because it was not worth the litigation until a greater amount is involved. Representative Bunde reiterated his comments that if a person wants to enjoy the outdoors there is a certain amount of risk involved. REPRESENTATIVE MACLEAN asked Representative Bunde for a definition of "grossly negligent." REPRESENTATIVE BUNDE stated he had a legal definition of "grossly negligent" with him. He acknowledged that Mike Ford from Legislative Legal was present for the interpretation of "grossly negligent." MIKE FORD, Attorney, Division of Legal Services, Legislative Affairs Agency, said he believes this was discussed at the last meeting on the bill. He said he believes he provided Representative Bunde's office with a copy of jury instructions that are given whenever this issue arises in a civil lawsuit. It discusses what negligence is. He noted there are some cases that have discussed gross negligence. Simple negligence is where you fail to do something you should have done that an ordinary and reasonable person would have done in the same circumstances. Gross negligence is something beyond that. Simple negligence is an aggravated form of misconduct. Mr. Ford said it is a concept that is really fact-dependent. You have to supply facts to really understand whether that situation would or would not be gross negligence. He explained an example he used previously was refueling your airplane. If you refuel your airplane and you don't secure the fuel cap, you take off and the fuel spills out, that would be negligence. If you filled the tank half way and then switch to water, that is gross negligence, because obviously people don't fly planes on water. CHAIRMAN DAVIS added that with the recommended inclusion of negligence up to reckless and intentional, everything is covered other than "Acts of God." Number 420 REPRESENTATIVE BUNDE explained, a prudent person would not refuel a plane with the passenger in the airplane or while smoking. He said if you refuel the airplane with a passenger inside and for some reason you have a fire, that would be considered negligent or even grossly negligent. If you are refueling while you are smoking, this would definitely be considered grossly negligent. Representative Bunde stated a person's acts or failure to act creates an unreasonable risk of harm to another person. CHAIRMAN DAVIS asked for questions. He asked Representative Bunde, with the inclusion of the word "negligence" in HB 161, it was stated by Mr. Brown, that then this is already covered somewhere in statute or was it in just court and insurance or standard law language. REPRESENTATIVE BUNDE respectfully disagreed with Chairman Davis's comment and referred to Mr. Ford's observation on the determinations of what is considered "negligent" and what is not negligent is highly debatable, depending on the circumstance. Representative Bunde said he did not think it was covered in existing statute. Number 442 MR. FORD added HB 161 was fairly narrowly crafted and only applies to negligent acts of someone operating an aircraft, and the person filing suit is someone who is not paying for their ride and is a guest passenger. He said they started from that standpoint and by adding the word "negligence" to this, it further narrows the intent. He stated if he understood the amendment correctly, it would only address acts that are not negligent, grossly negligent, reckless or intentional misconduct. He concluded the only acts HB 161 would be applicable to are acts of strict liability and stated he was not sure he knew what they would be. REPRESENTATIVE MACLEAN stated for the record, she does not support HB 161 on the grounds of its exclusive nature to water and aircraft, and that it should include all transportation modes if we are going to have a bill like this. Number 451 REPRESENTATIVE JERRY SANDERS stated he will not support HB 161, but would be willing to support a cap on what people could recover or he might be able to support a waiver of the passenger's rights when in a airplane. He stated from the way he sees it, if you have an airplane and you are going to carry passengers, you have a responsibility to carry insurance or you just simply have the responsibility to tell people no, you won't carry then. He stated it was too dangerous, inherently, not to carry insurance and for those reasons he could not agree with HB 161. REPRESENTATIVE JAMES stated HB 161 would be acceptable to her, as long as the passengers that do not pay for their ride know they are not covered, because there is an inherent risk to living and no one person should be responsible for the guarantee of everyone's recovery of a certain dollar amount for their behavior. She emphasized this was recreational and the passenger has a choice as to whether they choose to ride with the pilot or not. She said people need to understand that they should be held responsible for their own actions because there are other circumstances that can happen; for example a bird can fly into the windshield and everybody goes down. She believed that we as people need to be responsible for our own lives and not look around for deep pockets to take care of us when we don't make a good decision. Representative James added, said would support HB 161. REPRESENTATIVE BUNDE addressed Representative Sanders' concern regarding notification, by explaining a number of lawyers and a number of people have tried to come up with an idea where, you have a form that if someone wanted to go for a ride with you, they sign a form, but you can't sign away someone else's rights. He reiterated you can sign away your right to sue, but you can't sign away your wife's, and your children's right to sue. He added maybe when you are an employer and have lost your services. He said just notification that there is no coverage or that you would be limited to a certain insurance level of recovery will not protect a person. Number 487 CHAIRMAN DAVIS asked if Representative Bunde would interpret that the same if there was a requirement for the pilot or boat owner to notify the passengers, or whether there was a sticker on the boat or plane. Chairman Davis asked if this would be the same interpretation, where that would not be legally binding. REPRESENTATIVE BUNDE stated it would not suborn someone else's rights. He explained if the pilot has a sticker displayed on his aircraft and a passenger is hurt or killed, his family has the right to sue the pilot regardless of whether the passenger signed a waiver or not. REPRESENTATIVE WILLIAMS asked Representative Bunde if he would consider adding the words "recreational vehicles" to HB 161. REPRESENTATIVE BUNDE stated he had not researched that idea and has no aversion to the inclusion. He added the only other vehicle this would be applicable to are snow machines. He explained it is prohibited for operators of all terrain vehicles (ATV) to carry passengers. He stated he would be willing to look into Representative Williams' suggestion. CHAIRMAN DAVIS stated due to the fact he will have to draft a Committee Substitute for the recommended addition, if Representative Bunde so desired he may conduct further research on HB 161. Chairman Davis said he would consult with the drafter with regards in addressing Representative MacLean's concerns on the addition of other forms of recreational vehicles. Number 515 REPRESENTATIVE MACLEAN corrected the comment regarding the prohibition of passengers on an ATV. She stated carrying passengers is allowed, particularly in rural areas when traveling through the country to go out hunting, then that is recreational. She reiterated it did include ATVs. CHAIRMAN DAVIS questioned the fact there is not an insurance requirement anywhere in those areas as there is for automobiles, boats and aircraft. REPRESENTATIVE MASEK inquired as to the inclusion of sled dog teams in HB 161. CHAIRMAN DAVIS stated this would be discussed. He then asked for a motion to amend HB 161 by the addition of the word "negligence" as requested by the sponsor of the legislation. REPRESENTATIVE JAMES made a motion to add the word "negligence" on page 1, line 13, after "gross negligence." CHAIRMAN DAVIS asked for any objection. Hearing none, he stated he would draft a CS for HB 161 for the next meeting. REPRESENTATIVE JAMES expressed her concerns for other than water and aircraft being included in the bill. She felt there was some merit in going over other issues and stated if we go too far, we get into different circumstances that one blanket statement would not fit. She stated it would be safer to have this exclusive to air and watercraft, and if there needs to be something to address other recreational activities, then we might want to have a separate bill like we have for skiing and other recreational activities, where there is an inherent risk that is assumed when participating in these activities. Number 540 REPRESENTATIVE MACLEAN stated she disagreed with Representative James and explained this would give special privilege to a particular group of people instead of all inclusive, then we are being exclusive just to air and watercraft and said this is why she opposed the bill. CHAIRMAN DAVIS added he will research the addition of the word "negligence" and existing information on this subject to make sure it is not legislation already covered elsewhere. He stated he would work up a CS for the next meeting. HTRA - 03/15/95 HB 204 - NO DRINK BEFORE DRIVING IF UNDER 21 Number 568 CHAIRMAN DAVIS announced the next order of business was to hear testimony on HB 204. REPRESENTATIVE JAMES commented that today on the House floor an extension of last year's "use it or lose it" bill was passed and HB 204 seemed to be very similar. CHAIRMAN DAVIS responded, no it was not. MARGOT KNUTH, Assistant Attorney General, Criminal Division, Department of Law, stated she was in attendance to testify on behalf of Governor Knowles. She indicated as Representative James has noted, the House did pass a "use it or lose it" bill which does some fine tuning on "use it or lose it" legislation passed last year by the legislature. She explained the "use it" portion of the bill was the use of alcohol or drugs and the "lose it" being the driving privileges. She explained HB 204 is a zero tolerance level bill for minors drinking and driving. She stated that a minor operating a vehicle after consuming alcohol, or commonly known as MOVACA, created a new offense being a violation and not a misdemeanor and cannot result in imposed jail time. She stated it adds this offense as another of the offenses that invokes the "use it or lose it" penalty and that is why the first several sections do look the same as HB 21 previously presented. She stated the first four sections of HB 204 are amendments to the "use it or lose it" law that will include the mentioned MOVACA offense as a basis for juveniles' driving privileges being revoked. She stated the actual offense of MOVACA appears in Section 6 of HB 204 and adds new sections to Title 28.35; namely 280 and 285 and 290. She listed three components to the offense; first, establishing a violation for a minor to operate a vehicle after consuming any amount of alcohol. She added if the minor has consumed enough alcohol to be intoxicated, then Alaska's DWI laws would still apply. She stated if the minor is given a breath test and is over .10 percent blood alcohol level or shows signs of driving while intoxicated, it would still be an example of a class A misdemeanor of driving while intoxicated. She indicated the point of this legislation is, since it is illegal for minors to consume any amount of alcohol, if they have consumed any amount at all and are driving, the department wants the ability to take them off the road and that is what MOVACA would allow Peace Officers to do. She explained in addition to the violation of operating the vehicle after consuming alcohol, Section AS 28.35.285 is a refusal section and parallels the refusal we currently have for driving while intoxicated offenses. She mentioned a juvenile would be asked to take a breath test and if they refused, the law will assume they have consumed some alcohol and are subject to this violation. She stated the third provision is AS 28.35.290 which prohibits juveniles from driving again within 24 hours of being cited for MOVACA. She stated this was a period of time within which we do not want them back in the car, until all alcohol has left their system. She reiterated if the juvenile does get back into a car and starts driving, he would be in violation but this would not result in jail time; however, their driving privileges can be revoked and would create points on their driving record. MS. KNUTH mentioned this legislation is endorsed by numerous groups around the state. She stated the committee has letters in support of the bill from the Alaska Council and the Prevention of Alcohol and Drug Abuse, Alaskans for a Drug Free Youth, letters from two residents of Alaska, also Mothers Against Drunk Driving (MADD), National Highway Traffic Safety Association, the National Traffic Safety Bureau, Alaska Police Officers Association, and Alaska Association of Police Chiefs. MS. KNUTH indicated in Alaska, drivers under the age of 20 years represent only 6.2 percent of our driving population. She added at the same time, they are involved in 12.9 percent of the motor vehicle crashes on an annual basis, which means roughly twice the representation of the driving population. She explained worse than that, when it comes to fatal crashes, drivers under the age of 20 are involved in over 30 percent of these fatal crashes. She said this could be contributed to lack of experience, and of those fatal crashes these children are involved in, over one-third involve alcohol. She noted any type of action to make the streets safer for both the children and for ourselves, trying to get anybody who is under the age of 20 and has been consuming alcohol off the road is a major step forward. Ms. Knuth asked for questions. Number 630 CHAIRMAN DAVIS stated he supported HB 204. He stated he was not a fan of additional proliferation of alcohol related legislation as it relates to DWIs and felt there was plenty of beneficial legislation on the books. He felt after talking with the drafters of the bill it is a target group that should be targeted and there should be some effort made. He pointed out these violations are similar to traffic fine violations and expressed concern about the $1000 limit on those violations. Chairman Davis asked if there were any questions. REPRESENTATIVE JAMES she asked if a 13 year old is caught driving a car under the influence, having consumed, but not necessarily a DWI, what are all the consequences for that person? MS. KNUTH explained they are a group of people who are not eligible to be driving at all and would go through juvenile proceedings. She stated there would be the offense of driving without a valid operators license which is a misdemeanor offense. TAPE 95-8, SIDE B Number 000 REPRESENTATIVE JAMES inquired as to whether the "use it or lose it" bill also contained provisions, for cases where if a juvenile does not have a license and is found in the car consuming alcohol; would they still lose their license for whenever they are suppose to get their license. MS. KNUTH affirmed Representative James' comment and explained regardless of having their license, they would lose their privilege to apply for a license for the standard period of the "use it or lose it" law. She stated theoretically at the age of six, a person could be subject to the "use it or lose it" law; meaning when a person is finally eligible for a driver's license at age 14, the person would still have to wait a year or however long the time period was. She stated we were working within the structure of the "use it or lose it" law, and did not intend to go back and reexamine the law. She stated they did not look at whether the "use it or lose it" age should be higher or lower than what it was; they simply added the additional offense to the existing law. Number 028 REPRESENTATIVE JAMES referred to not allowing the person back into a vehicle for 24 hours, and asked if this was because they would not be charged with the "use it or lose it" consequences. She stated she thought it would have been longer than the 24 hours established. MS. KNUTH explained with the "use it or lose it" law, a person will usually get a three-day temporary permit, giving the person a time period to pursue an "administrative challenge" if the person feels they should not have lost their driving privileges. She stated the "use it or lose it" law states as soon as the driver has been cited for the offense, the driver is allowed to drive for three days, then they would impose a revocation. She explained, considering what they are losing their license for - in this case, having consumed alcohol - the department felt they needed to add a provision that says, even though normally a person receives a three-day grace period on the license revocation, they cannot drive for 24 hours because they have been consuming alcohol and were the type of driver we don't want on the roads. Ms. Knuth summarized that this was a 24-hour out of service period which essentially parallels the commercial DWI laws and then there would be the three day period to administratively challenge the revocation and then the revocation would go into effect. REPRESENTATIVE MACLEAN stated conceptually she agreed with HB 161 but questioned its applicability to the rural communities of Alaska. She referred to page 3, lines 12 and 13, which indicates the driver has to successfully complete a drug rehabilitation treatment program. She noted this is not available in rural Alaska. Also, lines 30 and 31 of page 3, state that tests shall be administered by a Peace Officer. She expressed similar concerns with the wording on page 4, lines 14 through 19 regarding the offender being transported to a location where a chemical or alcohol test authorized under section (2) of the subsection may be administered, also with the wording on page 5, lines 6 through 19 with respect to its applicability to rural Alaska. Number 093 MS. KNUTH stated these points were all valid. She addressed Representative MacLean's question of drug rehabilitation and alcohol treatment programs in rural areas of Alaska, which is raised in AS 28.15.183 on page 3. She indicated this is part of the "use it or lose it" statute, and because of the concern expressed by Representative MacLean, in 1994 there is a subsection (H) which the committee does not have but it is in the law, that says, the department may waive those provisions if a person who is required to obtain drug or alcoholism treatment resides in an area where drug rehabilitation or alcoholism treatment is not available. She said this was done specifically in recognition of the reality that there are places that do not have these programs. She noted similarly, the offense where it mentions transporting a person to a location where chemical or other tests may be administered, the law uses the word "may" instead of "shall" with respect to rural areas not having the appropriate facilities such as a intoximeter or a police station nearby. She said methods in these rural areas are relying on portable breath tests, currently being used for DWI offenses and will have similar tests for the MOVACA offenses. She stated this would also be similar for the minor's refusal to submit to a chemical test. She explained the chemical test in rural areas can be the portable breath test which an officer can administer out in the field and rural areas of Alaska; it doesn't have to be the breathalyzer test which requires equipment that is not found statewide. REPRESENTATIVE MACLEAN asked about the smaller villages that do not have the equipment. MS. KNUTH stated they do not have the intoximeter equipment, however, they do have the portable breath test which is a smaller tester which the Village Public Safety Officer's (VPSOs) have and they are issued statewide. CHAIRMAN DAVIS expressed concern for the term "operating" a motor vehicle instead of "driving" and presented a relevant scenario where someone is in the driver's seat and keys are in the ignition or has intentions of showing off and then gets caught, they then deny that they were driving and are in trouble. He asked for conformation that HB 204 had already incorporated language relating to this into HB 204 MS. KNUTH stated the language was incorporated into HB 204 and has been a subject of discussion in the law previously. She explained the way the law has been applied is, if a person has the ability to drive the vehicle, but may not have been driving at the time the driver is stopped, this would not help the person much in this case. She explained the intent of HB 204 is to establish preventative measures. She stated it would be fairly easy for a person to pull the vehicle off the road and deny that they have been driving. She mentioned they have had people who have driven off the road and are found in the ditch with keys in the ignition and have denied they were driving. Ms. Knuth indicated the law would treat them as if they had been driving. She indicated officers would probably use their own discretion in cases such as this, where it would be a violation and not a misdemeanor. She concluded that the point is to prevent them from driving when intoxicated. She mentioned if a ten year old got behind the wheel and was just pretending to drive with no intent to actually drive, this situation would not lead to an arrest. Number 185 REPRESENTATIVE JAMES made reference to last year's session and the "use it or lose it" bill and indicated her concern for having the same penalty for a young person that was drinking and not driving, as the same penalty for a person who was drinking and driving. She felt there should be some sort of division there, that drinking and not driving was certainly not as big of a crime as drinking and driving. She explained the problem is, we have to remember that drinking is illegal for these kids, and it does not make a difference if they are walking along the streets, it is still something they ought not to be doing. She stated if the real goal of HB 204 is to stop these kids from drinking and driving and then getting into a car, possibly killing themselves and other people because they are developing habits that will be hard to break, then whatever we can do, the benefits would outweigh the damages. She said she was convinced of this last year, even though she feels very strongly that we ought to be sure that everybody has their just due process, and the penalties are according to the level of the offense. She reiterated if we could just face the fact that drinking for underaged children is illegal, and it is a serious crime that tends to over-shadow all of the other conditions that come after it. REPRESENTATIVE MACLEAN made a motion to move HB 204 out of the House Transportation Committee with individual recommendations and zero fiscal notes. CHAIRMAN DAVIS asked for any objections. Hearing none, HB 204 was moved out of the House Transportation Committee. ADJOURNMENT There being no further business to come before the House Transportation Committee, Chairman Davis adjourned the meeting at 2:10 p.m.