Legislature(1995 - 1996)
03/15/1995 01:12 PM House TRA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= 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.
| Document Name | Date/Time | Subjects |
|---|