00 SENATE CS FOR HOUSE BILL NO. 445(JUD) 01 "An Act relating to operating or driving a motor vehicle, commercial motor 02 vehicle, aircraft, or watercraft; to classifying certain driving while intoxicated 03 offenses as felonies; to motor vehicle forfeiture; and providing for an effective 04 date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 12.55.102(d) is amended to read: 07  (d) The court may include the cost of the ignition interlock device as a part 08 of the fine required to be imposed against the defendant under AS 28.35.030(b) or (n) 09 or 28.35.032(g) or (q). 10 * Sec. 2. AS 28.15.165(a) is amended to read: 11  (a) A law enforcement officer shall read a notice, and deliver a copy of it, to 12 a person operating a motor vehicle, commercial motor vehicle, or aircraft, if a 13 chemical test administered under AS 28.33.031(a) or AS 28.35.031(a) or (g) produces 14 a result described in AS 28.35.030(a)(2); a chemical test administered under 01 AS 28.33.031(a) produces a result described in AS 28.33.030(a)(2); or the person 02 refuses to submit to a chemical test authorized under AS 28.33.031(a) [AS 28.33.031] 03 or AS 28.35.031(a) or (g) [AS 28.35.032]. The notice must advise that 04  (1) the department intends to revoke the person's driver's license, 05 privilege to drive, or privilege to obtain a license, refuse to issue an original license 06 to the person, or disqualify the person; 07  (2) the person has the right to administrative review of the action taken 08 against the person's license or determination not to issue an original license; 09  (3) if the person has a driver's license or a nonresident privilege to 10 drive, the notice itself is a temporary driver's license that expires seven days after it 11 is delivered to the person, except that if the person was operating a commercial motor 12 vehicle the person will be ordered out of service for 24 hours under AS 28.33.130; 13  (4) revocation of the person's driver's license, privilege to drive, or 14 privilege to obtain a license, a determination not to issue an original license, or a 15 disqualification of the person, takes effect seven days after delivery of the notice to the 16 person unless the person, within seven days, requests an administrative review. 17 * Sec. 3. AS 28.15.165(c) is amended to read: 18  (c) Unless the person has obtained a temporary permit or stay of a 19 departmental action under AS 28.15.166, if the chemical test administered under 20 AS 28.33.031(a) or AS 28.35.031(a) or (g) produced a result described in 21 AS 28.35.030(a)(2) or the person refused to submit to a chemical test authorized 22 under AS 28.33.031(a) [AS 28.33.031] or AS 28.35.031(a) or (g) [AS 28.35.032], the 23 department shall revoke the person's license, privilege to drive, or privilege to obtain 24 a license, shall refuse to issue an original license, and, if the chemical test administered 25 under AS 28.33.031(a) produced a result described in AS 28.33.030(a)(2) or the person 26 refused to submit to a chemical test authorized under AS 28.33.031(a) 27 [AS 28.33.031], shall disqualify the person. The department's action takes effect seven 28 days after delivery to the person of the notice required under (a) of this section, and 29 after receipt of a sworn report of a law enforcement officer 30  (1) that a chemical test administered under AS 28.33.031(a) or 31 AS 28.35.031(a) or (g) produced a result described in AS 28.35.030(a)(2), that a 01 chemical test administered under AS 28.33.031(a) produced a result described in 02 AS 28.33.030(a)(2), or that a person refused to submit to a chemical test authorized 03 under AS 28.33.031(a) [AS 28.33.031] or AS 28.35.031(a) or (g) [AS 28.35.032]; 04  (2) that notice under (a) of this section was provided to the person; and 05  (3) describing the 06  (A) circumstances surrounding the arrest and the grounds for the 07 officer's belief that the person operated a motor vehicle, commercial motor 08 vehicle, or aircraft while intoxicated in violation of AS 28.33.030 or 09 AS 28.35.030; or 10  (B) grounds for the officer's belief that the person operated 11 a motor vehicle that was involved in an accident causing death or serious 12 physical injury to another person. 13 * Sec. 4. AS 28.15.166(g) is amended to read: 14  (g) The hearing for review of action by the department under AS 28.15.165 15 shall be limited to the issues of whether the law enforcement [ARRESTING] officer 16 had reasonable grounds to believe that the person was operating a motor vehicle that 17 was involved in an accident causing death or serious physical injury to another 18 person, or that the person was operating a motor vehicle, commercial motor 19 vehicle, or aircraft while intoxicated in violation of AS 28.33.030 or AS 28.35.030 and 20 whether 21  (1) the person refused to submit to a chemical test authorized under 22 AS 28.33.031(a) [AS 28.33.031] or AS 28.35.031(a) or (g) [AS 28.35.032] after being 23 advised that refusal would result in disqualification or the suspension, revocation, or 24 denial of the person's license, privilege to drive, or privilege to obtain a license, and 25 that the refusal is a misdemeanor; 26  (2) the chemical test administered [AUTHORIZED] under 27 AS 28.33.031(a) or AS 28.35.031(a) or (g) produced a result described in 28 AS 28.35.030(a)(2); or 29  (3) the chemical test administered [AUTHORIZED] under 30 AS 28.33.031(a) produced a result described in AS 28.33.030(a)(2). 31 * Sec. 5. AS 28.15.181(a) is amended to read: 01  (a) Conviction of any of the following offenses is grounds for the immediate 02 revocation of a driver's license, privilege to drive, or privilege to obtain a license: 03  (1) manslaughter or negligent homicide resulting from driving a motor 04 vehicle; 05  (2) a felony in the commission of which a motor vehicle is used; 06  (3) failure to stop and give aid as required by law when a motor 07 vehicle accident results in the death or personal injury of another; 08  (4) perjury or making a false affidavit or statement under oath to the 09 department under a law relating to motor vehicles; 10  (5) operating a motor vehicle or aircraft while intoxicated; 11  (6) reckless driving; 12  (7) using a motor vehicle in unlawful flight to avoid arrest by a peace 13 officer; 14  (8) refusal to submit to a chemical test authorized under 15 AS 28.33.031(a) [AS 28.33.031] or AS 28.35.031(a) or (g) [AS 28.35.032 WHILE 16 UNDER ARREST FOR OPERATING A MOTOR VEHICLE, COMMERCIAL 17 MOTOR VEHICLE, OR AIRCRAFT WHILE INTOXICATED]; 18  (9) driving while license, privilege to drive, or privilege to obtain a 19 license, canceled, suspended, or revoked, or in violation of a limitation. 20 * Sec. 6. AS 28.33.031(a) is amended to read: 21  (a) A person who operates a commercial motor vehicle in this state is 22 considered to have given consent to a chemical test or tests 23  (1) of the person's breath if the person is lawfully arrested for an 24 offense arising out of acts alleged to have been committed when the person was 25 operating the commercial motor vehicle while intoxicated; the [. THE] test or tests 26 may be administered at the direction of a law enforcement officer who has reasonable 27 grounds to believe that the person was operating a commercial motor vehicle while 28 intoxicated in violation of AS 28.33.030 or AS 28.35.030; 29  (2) of the person's breath and blood for the purpose of determining 30 the alcoholic content of the person's breath and blood, and of the person's blood 31 and urine, for the purpose of determining the presence of controlled substances 01 in the person's blood and urine, if the person is involved in a motor vehicle 02 accident that causes death or serious physical injury to another person; the test 03 or tests may be administered at the direction of a law enforcement officer who 04 has reasonable grounds to believe that the person was operating a commercial 05 motor vehicle that was involved in an accident causing death or serious physical 06 injury to another person. 07 * Sec. 7. AS 28.33.190 is amended to read: 08  Sec. 28.33.190. DEFINITIONS. In this chapter [AS 28.33.100 - 28.33.190], 09  (1) "alcoholic beverage" has the meaning given in AS 04.21.080(b); 10  (2) "commercial motor vehicle" has the meaning given in 11 AS 28.40.100; 12  (3) "controlled substance" means any substance listed as being 13 controlled under AS 11.71 or 21 U.S.C. 812 - 813, or determined under federal 14 regulations to be controlled for purposes of 21 U.S.C. 801 - 813 (Controlled 15 Substances Act); 16  (4) "disqualification" means a withdrawal of the privilege to drive a 17 commercial motor vehicle; 18  (5) "disqualified" means that a person's privilege to drive a commercial 19 motor vehicle has been withdrawn; 20  (6) "drive a commercial motor vehicle" means to affect the movement, 21 attempt to affect the movement, or to be in actual physical control, of a commercial 22 motor vehicle in motion, excluding slight motion incidental to loading, unloading, 23 servicing, or inspecting the vehicle; 24  (7) "employer" means a person who 25  (A) provides compensation to a person who operates a 26 commercial motor vehicle, including wages or other remuneration, whether 27 through an employment relationship or by contract; or 28  (B) acts as an agent of someone who provides compensation to 29 a person who operates a commercial motor vehicle, with authority to allow, 30 require, permit, assign, or authorize the person being compensated to operate 31 a commercial motor vehicle; 01  (8) "hazardous substance" means a substance found by the United 02 States Secretary of Transportation to be hazardous for purposes of 49 U.S.C. 1801 - 03 1813 (Hazardous Materials Transportation Act); 04  (9) "operating a commercial motor vehicle" means 05  (A) to drive a commercial motor vehicle; or 06  (B) whether or not the vehicle is in motion, or is capable of 07 being moved, to be in actual physical control, or to attempt to affect the 08 movement, of a commercial motor vehicle; and 09  (10) "serious traffic violation" means 10  (A) speeding 15 miles per hour or more above the posted limit; 11  (B) reckless or negligent driving, in violation of AS 28.35.040 12 or 28.35.045 or an ordinance with substantially similar elements; 13  (C) violation of a provision of this title, or a regulation adopted 14 under this title, relating to improper lane changes or following too closely, or 15 an ordinance with substantially similar elements; or 16  (D) violation of a law or ordinance relating to traffic control, 17 which was determined by the court by a preponderance of the evidence to have 18 been a factor in causing physical injury to a person. 19 * Sec. 8. AS 28.35.030(b) is amended to read: 20  (b) Except as provided under (n) of this section, driving [DRIVING] while 21 intoxicated is a class A misdemeanor. Upon conviction 22  (1) the court shall impose a minimum sentence of imprisonment of 23  (A) not less than 72 consecutive hours and a fine of not less 24 than $250 if the person has not been previously convicted; 25  (B) not less than 20 days and a fine of not less than $500 if the 26 person has been previously convicted once [; 27  (C) NOT LESS THAN 60 DAYS AND A FINE OF NOT LESS 28 THAN $1,000 IF THE PERSON HAS BEEN PREVIOUSLY CONVICTED 29 TWICE; 30  (D) NOT LESS THAN 120 DAYS AND A FINE OF NOT 31 LESS THAN $2,000 IF THE PERSON HAS BEEN PREVIOUSLY 01 CONVICTED THREE TIMES; 02  (E) NOT LESS THAN 240 DAYS AND A FINE OF NOT 03 LESS THAN $3,000 IF THE PERSON HAS BEEN PREVIOUSLY 04 CONVICTED FOUR TIMES; 05  (F) NOT LESS THAN 360 DAYS AND A FINE OF NOT 06 LESS THAN $4,000 IF THE PERSON HAS BEEN PREVIOUSLY 07 CONVICTED MORE THAN FOUR TIMES]; 08  (2) the court may not 09  (A) suspend execution of sentence or grant probation except on 10 condition that the person serve the minimum imprisonment under (1) of this 11 subsection; 12  (B) suspend imposition of sentence; 13  (3) the court shall revoke the person's driver's license, privilege to 14 drive, or privilege to obtain a license under AS 28.15.181 [, AND MAY ORDER THE 15 MOTOR VEHICLE OR AIRCRAFT THAT WAS USED IN COMMISSION OF THE 16 OFFENSE TO BE FORFEITED UNDER AS 28.35.036]. 17 * Sec. 9. AS 28.35.030 is amended by adding new subsections to read: 18  (n) A person is guilty of a class C felony if the person is convicted of driving 19 while intoxicated and has been previously convicted two or more times. Upon 20 conviction the court 21  (1) shall impose a minimum sentence of imprisonment of 360 days and 22 a fine of not less than $1,000; 23  (2) may not 24  (A) suspend execution of sentence or grant probation except on 25 condition that the person serve the minimum imprisonment under (1) of this 26 subsection; or 27  (B) suspend imposition of sentence; 28  (3) shall revoke the person's driver's license, privilege to drive, or 29 privilege to obtain a license under AS 28.15.181; and 30  (4) may order as a condition of probation that the person take antabuse 31 or a similar drug intended to prevent the consumption of an alcoholic beverage; a 01 condition of probation imposed under this paragraph is in addition to any other 02 condition authorized under another provision of law. 03  (o) If the court imposes a sentence of imprisonment under (b) or (n) of this 04 section, the court shall also order forfeiture of the vehicle used in the commission of 05 the offense, subject to remission under AS 28.35.037. 06 * Sec. 10. AS 28.35.031 is amended by adding a new subsection to read: 07  (g) A person who operates or drives a motor vehicle in this state shall be 08 considered to have given consent to a chemical test or tests of the person's breath and 09 blood for the purpose of determining the alcoholic content of the person's breath and 10 blood and shall be considered to have given consent to a chemical test or tests of the 11 person's blood and urine for the purpose of determining the presence of controlled 12 substances in the person's blood and urine if the person is involved in a motor vehicle 13 accident that causes death or serious physical injury to another person. The test or 14 tests may be administered at the direction of a law enforcement officer who has 15 reasonable grounds to believe that the person was operating or driving a motor vehicle 16 in this state that was involved in an accident causing death or serious physical injury 17 to another person. 18 * Sec. 11. AS 28.35.032(a) is amended to read: 19  (a) If a person under arrest for operating a motor vehicle or aircraft while 20 intoxicated refuses the request of a law enforcement officer to submit to a chemical 21 test authorized under AS 28.33.031(a)(1) [AS 28.33.031(a)] or AS 28.35.031(a), or 22 if a person involved in a motor vehicle accident that causes death or serious 23 physical injury to another person refuses the request of a law enforcement officer 24 to submit to a chemical test authorized under AS 28.33.031(a)(2) or 25 AS 28.35.031(g), after being advised by the officer that the refusal will [, IF THAT 26 PERSON WAS ARRESTED WHILE OPERATING A MOTOR VEHICLE OR 27 AIRCRAFT,] result in the denial or revocation of the driver's license, privilege to 28 drive, or privilege to obtain a license, that the refusal may be used against the person 29 in a civil or criminal action or proceeding arising out of an act alleged to have been 30 committed by the person while operating a motor vehicle or [, AN] aircraft [, OR A 31 WATERCRAFT] while intoxicated, and that the refusal is a crime, a chemical test may 01 not be given, except as provided by AS 28.35.035. If a person under arrest for 02 operating a watercraft while intoxicated refuses the request of a law enforcement 03 officer to submit to a chemical test authorized under AS 28.35.031(a), after being 04 advised by the officer that the refusal may be used against the person in a civil 05 or criminal action or proceeding arising out of an act alleged to have been 06 committed by the person while operating a watercraft while intoxicated, and that 07 the refusal is a crime, a chemical test may not be given, except as provided by 08 AS 28.35.035. 09 * Sec. 12. AS 28.35.032(e) is amended to read: 10  (e) The refusal of a person to submit to a chemical test authorized under 11 AS 28.33.031(a) or AS 28.35.031(a) or (g) [OF BREATH UNDER (a) OF THIS 12 SECTION] is admissible evidence in a civil or criminal action or proceeding arising 13 out of an act alleged to have been committed by the person while operating or driving 14 a motor vehicle or operating an aircraft or watercraft while intoxicated. 15 * Sec. 13. AS 28.35.032(f) is amended to read: 16  (f) Except as provided under (q) of this section, refusal [REFUSAL] to 17 submit to a [THE] chemical test [OF BREATH] authorized by AS 28.33.031(a) or 18 AS 28.35.031(a) or (g) is a class A misdemeanor. 19 * Sec. 14. AS 28.35.032(g) is amended to read: 20  (g) Upon conviction under this section 21  (1) the court shall impose a minimum sentence of imprisonment of 22  (A) not less than 72 consecutive hours and a fine of not less 23 than $250 if the person has not been previously convicted; 24  (B) not less than 20 days and a fine of not less than $500 if the 25 person has been previously convicted once [; 26  (C) NOT LESS THAN 60 DAYS AND A FINE OF NOT LESS 27 THAN $1,000 IF THE PERSON HAS BEEN PREVIOUSLY CONVICTED 28 TWICE; 29  (D) NOT LESS THAN 120 DAYS AND A FINE OF NOT 30 LESS THAN $2,000 IF THE PERSON HAS BEEN PREVIOUSLY 31 CONVICTED THREE TIMES [; 01  (E) NOT LESS THAN 240 DAYS AND A FINE OF NOT 02 LESS THAN $3,000 IF THE PERSON HAS BEEN PREVIOUSLY 03 CONVICTED FOUR TIMES; 04  (F) NOT LESS THAN 360 DAYS AND A FINE OF NOT 05 LESS THAN $4,000 IF THE PERSON HAS BEEN PREVIOUSLY 06 CONVICTED MORE THAN FOUR TIMES]; 07  (2) the court may not 08  (A) suspend execution of the sentence required by (1) of this 09 subsection or grant probation, except on condition that the person serve the 10 minimum imprisonment under (1) of this subsection; or 11  (B) suspend imposition of sentence; 12  (3) the court shall revoke the person's driver's license, privilege to 13 drive, or privilege to obtain a license under AS 28.15.181 [, AND MAY ORDER THE 14 MOTOR VEHICLE OR AIRCRAFT THAT WAS USED IN COMMISSION OF THE 15 OFFENSE BE FORFEITED UNDER AS 28.35.036]; and 16  (4) the sentence imposed by the court under this subsection shall run 17 consecutively with any other sentence of imprisonment imposed on the person. 18 * Sec. 15. AS 28.35.032(j) is amended to read: 19  (j) For purposes of this section, convictions for operating or driving while 20 intoxicated under AS 28.33.030 or AS 28.35.030 and for refusal to submit to a 21 chemical test [OF BREATH] under this section, if arising out of a single transaction 22 and a single arrest, are considered one previous conviction. 23 * Sec. 16. AS 28.35.032 is amended by adding new subsections to read: 24  (q) A person is guilty of a class C felony if the person is convicted under this 25 section and has been previously convicted two or more times. Upon conviction,  (1) the court shall impose a 26 minimum sentence of imprisonment of 360 27 days and a fine of not less than $1,000; 28  (2) the court may not 29  (A) suspend execution of the sentence required by (1) of this 30 subsection or grant probation, except on condition that the person serve the 31 minimum imprisonment under (1) of this subsection; or 01  (B) suspend imposition of sentence; 02  (3) the court shall revoke the person's driver's license, privilege to 03 drive, or privilege to obtain a license under AS 28.15.181; 04  (4) the court may order as a condition of probation that the person take 05 antabuse or a similar drug intended to prevent consumption of an alcoholic beverage; 06 a condition of probation imposed under this paragraph is in addition to any other 07 condition authorized under another provision of law; and 08  (5) the sentence imposed by the court under this subsection shall run 09 consecutively with any other sentence of imprisonment imposed on the person. 10  (r) If the court imposes a sentence of imprisonment under (g) or (q) of this 11 section, the court shall also order forfeiture of the vehicle used in the commission of 12 the offense, subject to remission under AS 28.35.037. 13 * Sec. 17. AS 28.35.035(a) is amended to read: 14  (a) If a person is under arrest for an offense arising out of acts alleged to have 15 been committed while the person was operating a motor vehicle, aircraft, or watercraft 16 while intoxicated, and that arrest results from an accident that causes death or physical 17 injury to another person, a chemical test may be administered without the consent of 18 the person arrested to determine the amount of alcohol in that person's breath or blood 19 or to determine the presence of controlled substances in that person's blood and 20 urine. 21 * Sec. 18. AS 28.35.035(b) is amended to read: 22  (b) A person who is unconscious or otherwise in a condition rendering that 23 person incapable of refusal is considered not to have withdrawn the consent provided 24 under AS 28.33.031(a) or AS 28.35.031(a) or (g) and a chemical test may be 25 administered to determine the amount of alcohol in that person's breath or blood or 26 to determine the presence of controlled substances in that person's blood and 27 urine. A person who is unconscious or otherwise incapable of refusal need not be 28 placed under arrest before a chemical test may be administered. 29 * Sec. 19. AS 28.35.036 is repealed and reenacted to read: 30  Sec. 28.35.036. FORFEITURE OF MOTOR VEHICLE OR AIRCRAFT. (a) 31 Upon forfeiture of a motor vehicle or aircraft under AS 28.35.030(o) or 28.35.032(r), 01 the court shall require the surrender of the registration and certificate of title of that 02 motor vehicle or aircraft. The registration and certificate of title shall be delivered to 03 the department. 04  (b) Forfeiture of a motor vehicle or aircraft under AS 28.35.030(o) or 05 28.35.032(r) extinguishes the rights or claims of a person with an ascertainable interest 06 in the motor vehicle or aircraft, unless the person seeks remission of the forfeiture 07 under AS 28.35.037 within 90 days after the person receives notice of the right of 08 remission under AS 28.35.037. Remission of forfeiture does not apply to a person 09 convicted under AS 28.35.030(o) or 28.35.032(r) whose vehicle or aircraft is forfeited. 10  (c) If not released under AS 28.35.037, a motor vehicle or aircraft forfeited 11 under AS 28.35.030(o) or 28.35.032(r) may be disposed of by the department by 12  (1) selling the motor vehicle or aircraft; proceeds from the sale shall be 13 deposited into the general fund; 14  (2) taking custody of the property and authorizing its use by the state 15 or another political subdivision of the state; or 16  (3) destroying property that is harmful to the public. 17 * Sec. 20. AS 28.35.037(a) is repealed and reenacted to read: 18  (a) Upon forfeiture of a motor vehicle or aircraft under AS 28.35.030(o) or 19 28.35.032(r), the state shall provide written notice within 30 days to each person with 20 an ascertainable ownership or security interest in the motor vehicle or aircraft, other 21 than the person convicted of the offense resulting in forfeiture, that 22  (1) the vehicle or aircraft has been forfeited; 23  (2) the person has a right to intervene to protect an interest in the motor 24 vehicle or aircraft under (b) of this section; and 25  (3) failure to seek remission of forfeiture within 90 days will extinguish 26 the rights of the person to the vehicle or aircraft. 27 * Sec. 21. AS 28.35.037(b) is amended to read: 28  (b) At the request of a person with an ownership or security interest in a 29 vehicle or aircraft forfeited under AS 28.35.030(o) or 28.35.032(r), other than the 30 person convicted of the offense resulting in forfeiture, the court shall schedule a 31 hearing in a timely manner to determine if remission of forfeiture shall be 01 ordered as provided under this section. At the hearing, a person who claims an 02 ownership or security interest in the motor vehicle, or aircraft, must establish by a 03 preponderance of the evidence that 04  (1) the petitioner has an interest in the motor vehicle, or aircraft, 05 acquired in good faith; 06  (2) a person other than the petitioner was convicted of the offense that 07 resulted in the forfeiture; and 08  (3) before parting with the motor vehicle, or aircraft, the petitioner did 09 not know or have reasonable cause to believe that it would be used in the commission 10 of an offense. 11 * Sec. 22. AS 28.35 is amended by adding a new section to article 2 to read: 12  Sec. 28.35.039. DEFINITION FOR AS 28.35.029 - 28.35.039. In 13 AS 28.35.029 - 28.35.039, "controlled substance" has the meaning given in 14 AS 28.33.190. 15 * Sec. 23. AS 28.40.100(a) is amended by adding a new paragraph to read: 16  (24) "serious physical injury" has the meaning given in 17 AS 11.81.900(b). 18 * Sec. 24. AS 28.35.030(m)(1) and 28.35.037(d) are repealed. 19 * Sec. 25. APPLICABILITY. The amendments made by secs. 1, 8, 9, 14, 16, and 19 of 20 this Act apply to offenses that are committed on or after the effective date of this Act, except 21 that references to previous convictions include convictions occurring before, on, or after the 22 effective date of this Act. 23 * Sec. 26. This Act takes effect July 1, 1994.