SCS HB 445(FIN): "An Act relating to operating or driving a motor vehicle, commercial motor vehicle, aircraft, or watercraft; to motor vehicle forfeiture; and providing for an effective date."
00SENATE CS FOR HOUSE BILL NO. 445(FIN) 01 "An Act relating to operating or driving a motor vehicle, commercial motor 02 vehicle, aircraft, or watercraft; to motor vehicle forfeiture; and providing for an 03 effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 28.15.165(a) is amended to read: 06 (a) A law enforcement officer shall read a notice, and deliver a copy of it, to 07 a person operating a motor vehicle, commercial motor vehicle, or aircraft, if a 08 chemical test administered under AS 28.33.031(a) or AS 28.35.031(a) or (g) produces 09 a result described in AS 28.35.030(a)(2); a chemical test administered under 10 AS 28.33.031(a) produces a result described in AS 28.33.030(a)(2); or the person 11 refuses to submit to a chemical test authorized under AS 28.33.031(a) [AS 28.33.031] 12 or AS 28.35.031(a) or (g) [AS 28.35.032]. The notice must advise that 13 (1) the department intends to revoke the person's driver's license, 14 privilege to drive, or privilege to obtain a license, refuse to issue an original license
01 to the person, or disqualify the person; 02 (2) the person has the right to administrative review of the action taken 03 against the person's license or determination not to issue an original license; 04 (3) if the person has a driver's license or a nonresident privilege to 05 drive, the notice itself is a temporary driver's license that expires seven days after it 06 is delivered to the person, except that if the person was operating a commercial motor 07 vehicle the person will be ordered out of service for 24 hours under AS 28.33.130; 08 (4) revocation of the person's driver's license, privilege to drive, or 09 privilege to obtain a license, a determination not to issue an original license, or a 10 disqualification of the person, takes effect seven days after delivery of the notice to the 11 person unless the person, within seven days, requests an administrative review. 12 * Sec. 2. AS 28.15.165(c) is amended to read: 13 (c) Unless the person has obtained a temporary permit or stay of a 14 departmental action under AS 28.15.166, if the chemical test administered under 15 AS 28.33.031(a) or AS 28.35.031(a) or (g) produced a result described in 16 AS 28.35.030(a)(2) or the person refused to submit to a chemical test authorized 17 under AS 28.33.031(a) [AS 28.33.031] or AS 28.35.031(a) or (g) [AS 28.35.032], the 18 department shall revoke the person's license, privilege to drive, or privilege to obtain 19 a license, shall refuse to issue an original license, and, if the chemical test administered 20 under AS 28.33.031(a) produced a result described in AS 28.33.030(a)(2) or the person 21 refused to submit to a chemical test authorized under AS 28.33.031(a) 22 [AS 28.33.031], shall disqualify the person. The department's action takes effect seven 23 days after delivery to the person of the notice required under (a) of this section, and 24 after receipt of a sworn report of a law enforcement officer 25 (1) that a chemical test administered under AS 28.33.031(a) or 26 AS 28.35.031(a) or (g) produced a result described in AS 28.35.030(a)(2), that a 27 chemical test administered under AS 28.33.031(a) produced a result described in 28 AS 28.33.030(a)(2), or that a person refused to submit to a chemical test authorized 29 under AS 28.33.031(a) [AS 28.33.031] or AS 28.35.031(a) or (g) [AS 28.35.032]; 30 (2) that notice under (a) of this section was provided to the person; and 31 (3) describing the
01 (A) circumstances surrounding the arrest and the grounds for the 02 officer's belief that the person operated a motor vehicle, commercial motor 03 vehicle, or aircraft while intoxicated in violation of AS 28.33.030 or 04 AS 28.35.030; or 05 (B) grounds for the officer's belief that the person operated 06 a motor vehicle or commercial motor vehicle that was involved in an 07 accident causing death or serious physical injury to another person. 08 * Sec. 3. AS 28.15.166(g) is amended to read: 09 (g) The hearing for review of action by the department under AS 28.15.165 10 shall be limited to the issues of whether the law enforcement [ARRESTING] officer 11 had reasonable grounds to believe that the person was operating a motor vehicle or 12 commercial motor vehicle that was involved in an accident causing death or 13 serious physical injury to another person, or that the person was operating a 14 motor vehicle, commercial motor vehicle, or aircraft while intoxicated in violation of 15 AS 28.33.030 or AS 28.35.030 and whether 16 (1) the person refused to submit to a chemical test authorized under 17 AS 28.33.031(a) [AS 28.33.031] or AS 28.35.031(a) or (g) [AS 28.35.032] after being 18 advised that refusal would result in disqualification or the suspension, revocation, or 19 denial of the person's license, privilege to drive, or privilege to obtain a license, and 20 that the refusal is a misdemeanor; 21 (2) the chemical test administered [AUTHORIZED] under 22 AS 28.33.031(a) or AS 28.35.031(a) or (g) produced a result described in 23 AS 28.35.030(a)(2); or 24 (3) the chemical test administered [AUTHORIZED] under 25 AS 28.33.031(a) produced a result described in AS 28.33.030(a)(2). 26 * Sec. 4. AS 28.15.181(a) is amended to read: 27 (a) Conviction of any of the following offenses is grounds for the immediate 28 revocation of a driver's license, privilege to drive, or privilege to obtain a license: 29 (1) manslaughter or negligent homicide resulting from driving a motor 30 vehicle; 31 (2) a felony in the commission of which a motor vehicle is used;
01 (3) failure to stop and give aid as required by law when a motor 02 vehicle accident results in the death or personal injury of another; 03 (4) perjury or making a false affidavit or statement under oath to the 04 department under a law relating to motor vehicles; 05 (5) operating a motor vehicle or aircraft while intoxicated; 06 (6) reckless driving; 07 (7) using a motor vehicle in unlawful flight to avoid arrest by a peace 08 officer; 09 (8) refusal to submit to a chemical test authorized under 10 AS 28.33.031(a)(1), AS 28.35.031(a), or [AS 28.33.031 OR] AS 28.35.032 while 11 under arrest for operating a motor vehicle, commercial motor vehicle, or aircraft while 12 intoxicated, or as authorized under AS 28.33.031(a)(2) or AS 28.35.031(g); 13 (9) driving while license, privilege to drive, or privilege to obtain a 14 license, canceled, suspended, or revoked, or in violation of a limitation. 15 * Sec. 5. AS 28.33.031(a) is amended to read: 16 (a) A person who operates a commercial motor vehicle in this state is 17 considered to have given consent to a chemical test or tests 18 (1) of the person's breath if the person is lawfully arrested for an 19 offense arising out of acts alleged to have been committed when the person was 20 operating the commercial motor vehicle while intoxicated; the [. THE] test or tests 21 may be administered at the direction of a law enforcement officer who has reasonable 22 grounds to believe that the person was operating a commercial motor vehicle while 23 intoxicated in violation of AS 28.33.030 or AS 28.35.030; 24 (2) of the person's breath and blood for the purpose of determining 25 the alcoholic content of the person's breath and blood, and of the person's blood 26 and urine, for the purpose of determining the presence of controlled substances 27 in the person's blood and urine, if the person is involved in a motor vehicle 28 accident that causes death or serious physical injury to another person; the test 29 or tests may be administered at the direction of a law enforcement officer who 30 has reasonable grounds to believe that the person was operating a commercial 31 motor vehicle that was involved in an accident causing death or serious physical
01 injury to another person. 02 * Sec. 6. AS 28.33.190 is amended to read: 03 Sec. 28.33.190. DEFINITIONS. In this chapter [AS 28.33.100 - 28.33.190], 04 (1) "alcoholic beverage" has the meaning given in AS 04.21.080(b); 05 (2) "commercial motor vehicle" has the meaning given in 06 AS 28.40.100; 07 (3) "controlled substance" means any substance listed as being 08 controlled under AS 11.71 or 21 U.S.C. 812 - 813, or determined under federal 09 regulations to be controlled for purposes of 21 U.S.C. 801 - 813 (Controlled 10 Substances Act); 11 (4) "disqualification" means a withdrawal of the privilege to drive a 12 commercial motor vehicle; 13 (5) "disqualified" means that a person's privilege to drive a commercial 14 motor vehicle has been withdrawn; 15 (6) "drive a commercial motor vehicle" means to affect the movement, 16 attempt to affect the movement, or to be in actual physical control, of a commercial 17 motor vehicle in motion, excluding slight motion incidental to loading, unloading, 18 servicing, or inspecting the vehicle; 19 (7) "employer" means a person who 20 (A) provides compensation to a person who operates a 21 commercial motor vehicle, including wages or other remuneration, whether 22 through an employment relationship or by contract; or 23 (B) acts as an agent of someone who provides compensation to 24 a person who operates a commercial motor vehicle, with authority to allow, 25 require, permit, assign, or authorize the person being compensated to operate 26 a commercial motor vehicle; 27 (8) "hazardous substance" means a substance found by the United 28 States Secretary of Transportation to be hazardous for purposes of 49 U.S.C. 1801 - 29 1813 (Hazardous Materials Transportation Act); 30 (9) "operating a commercial motor vehicle" means 31 (A) to drive a commercial motor vehicle; or
01 (B) whether or not the vehicle is in motion, or is capable of 02 being moved, to be in actual physical control, or to attempt to affect the 03 movement, of a commercial motor vehicle; and 04 (10) "serious traffic violation" means 05 (A) speeding 15 miles per hour or more above the posted limit; 06 (B) reckless or negligent driving, in violation of AS 28.35.040 07 or 28.35.045 or an ordinance with substantially similar elements; 08 (C) violation of a provision of this title, or a regulation adopted 09 under this title, relating to improper lane changes or following too closely, or 10 an ordinance with substantially similar elements; or 11 (D) violation of a law or ordinance relating to traffic control, 12 which was determined by the court by a preponderance of the evidence to have 13 been a factor in causing physical injury to a person. 14 * Sec. 7. AS 28.35.030(a) is amended to read: 15 (a) A person commits the crime of driving while intoxicated if the person 16 operates or drives a motor vehicle or operates an aircraft or a watercraft 17 (1) while under the influence of intoxicating liquor, or any controlled 18 substance; 19 (2) when, as determined by a chemical test taken within four hours 20 after the alleged offense was committed, there is 0.08 [0.10] percent or more by weight 21 of alcohol in the person's blood or 80 [100] milligrams or more of alcohol per 100 22 milliliters of blood, or when there is 0.08 [0.10] grams or more of alcohol per 210 23 liters of the person's breath; or 24 (3) while the person is under the combined influence of intoxicating 25 liquor and a controlled substance. 26 * Sec. 8. AS 28.35.031 is amended by adding a new subsection to read: 27 (g) A person who operates or drives a motor vehicle in this state shall be 28 considered to have given consent to a chemical test or tests of the person's breath and 29 blood for the purpose of determining the alcoholic content of the person's breath and 30 blood and shall be considered to have given consent to a chemical test or tests of the 31 person's blood and urine for the purpose of determining the presence of controlled
01 substances 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 or 03 tests may be administered at the direction of a law enforcement officer who has 04 reasonable grounds to believe that the person was operating or driving a motor vehicle 05 in this state that was involved in an accident causing death or serious physical injury 06 to another person. 07 * Sec. 9. AS 28.35.032(a) is amended to read: 08 (a) If a person under arrest for operating a motor vehicle or aircraft while 09 intoxicated refuses the request of a law enforcement officer to submit to a chemical 10 test authorized under AS 28.33.031(a)(1) [AS 28.33.031(a)] or AS 28.35.031(a), or 11 if a person involved in a motor vehicle accident that causes death or serious 12 physical injury to another person refuses the request of a law enforcement officer 13 to submit to a chemical test authorized under AS 28.33.031(a)(2) or 14 AS 28.35.031(g), after being advised by the officer that the refusal will [, IF THAT 15 PERSON WAS ARRESTED WHILE OPERATING A MOTOR VEHICLE OR 16 AIRCRAFT,] result in the denial or revocation of the driver's license, privilege to 17 drive, or privilege to obtain a license, that the refusal may be used against the person 18 in a civil or criminal action or proceeding arising out of an act alleged to have been 19 committed by the person while operating a motor vehicle or [, AN] aircraft [, OR A 20 WATERCRAFT] while intoxicated, and that the refusal is a crime, a chemical test may 21 not be given, except as provided by AS 28.35.035. If a person under arrest for 22 operating a watercraft while intoxicated refuses the request of a law enforcement 23 officer to submit to a chemical test authorized under AS 28.35.031(a), after being 24 advised by the officer that the refusal may be used against the person in a civil 25 or criminal action or proceeding arising out of an act alleged to have been 26 committed by the person while operating a watercraft while intoxicated, and that 27 the refusal is a crime, a chemical test may not be given, except as provided by 28 AS 28.35.035. 29 * Sec. 10. AS 28.35.032(e) is amended to read: 30 (e) The refusal of a person to submit to a chemical test authorized under 31 AS 28.33.031(a) or AS 28.35.031(a) or (g) [OF BREATH UNDER (a) OF THIS
01 SECTION] is admissible evidence in a civil or criminal action or proceeding arising 02 out of an act alleged to have been committed by the person while operating or driving 03 a motor vehicle or operating an aircraft or watercraft while intoxicated. 04 * Sec. 11. AS 28.35.032(f) is amended to read: 05 (f) Refusal to submit to a [THE] chemical test [OF BREATH] authorized by 06 AS 28.33.031(a) or AS 28.35.031(a) or (g) is a class A misdemeanor. 07 * Sec. 12. AS 28.35.032(j) is amended to read: 08 (j) For purposes of this section, convictions for operating or driving while 09 intoxicated under AS 28.33.030 or AS 28.35.030 and for refusal to submit to a 10 chemical test [OF BREATH] under this section, if arising out of a single transaction 11 and a single arrest, are considered one previous conviction. 12 * Sec. 13. AS 28.35.033(a) is amended to read: 13 (a) Upon the trial of a civil or criminal action or proceeding arising out of acts 14 alleged to have been committed by a person while operating or driving a motor vehicle 15 or operating an aircraft or a watercraft while intoxicated, the amount of alcohol in the 16 person's blood or breath at the time alleged shall give rise to the following 17 presumptions: 18 (1) If there was 0.04 [0.05] percent or less by weight of alcohol in the 19 person's blood, or 40 [50] milligrams or less of alcohol per 100 milliliters of the 20 person's blood, or 0.04 [0.05] grams or less of alcohol per 210 liters of the person's 21 breath, it shall be presumed that the person was not under the influence of intoxicating 22 liquor. 23 (2) If there was in excess of 0.04 [0.05] percent but less than 0.08 24 [0.10] percent by weight of alcohol in the person's blood, or in excess of 40 [50] but 25 less than 80 [100] milligrams of alcohol per 100 milliliters of the person's blood, or 26 in excess of 0.04 [0.05] grams but less than 0.08 [0.10] grams of alcohol per 210 liters 27 of the person's breath, that fact does not give rise to any presumption that the person 28 was or was not under the influence of intoxicating liquor, but that fact may be 29 considered with other competent evidence in determining whether the person was 30 under the influence of intoxicating liquor. 31 (3) [REPEALED
01 (4)] If there was 0.08 [0.10] percent or more by weight of alcohol in 02 the person's blood, or 80 [100] milligrams or more of alcohol per 100 milliliters of the 03 person's blood, or 0.08 [0.10] grams or more of alcohol per 210 liters of the person's 04 breath, it shall be presumed that the person was under the influence of intoxicating 05 liquor. 06 * Sec. 14. AS 28.35.035(a) is amended to read: 07 (a) If a person is under arrest for an offense arising out of acts alleged to have 08 been committed while the person was operating a motor vehicle, aircraft, or watercraft 09 while intoxicated, and that arrest results from an accident that causes death or physical 10 injury to another person, a chemical test may be administered without the consent of 11 the person arrested to determine the amount of alcohol in that person's breath or blood 12 or to determine the presence of controlled substances in that person's blood and 13 urine. 14 * Sec. 15. AS 28.35.035(b) is amended to read: 15 (b) A person who is unconscious or otherwise in a condition rendering that 16 person incapable of refusal is considered not to have withdrawn the consent provided 17 under AS 28.33.031(a) or AS 28.35.031(a) or (g) and a chemical test may be 18 administered to determine the amount of alcohol in that person's breath or blood or 19 to determine the presence of controlled substances in that person's blood and 20 urine. A person who is unconscious or otherwise incapable of refusal need not be 21 placed under arrest before a chemical test may be administered. 22 * Sec. 16. AS 28.35 is amended by adding a new section to article 2 to read: 23 Sec. 28.35.039. DEFINITION FOR AS 28.35.029 - 28.35.039. In 24 AS 28.35.029 - 28.35.039, "controlled substance" has the meaning given in 25 AS 28.33.190. 26 * Sec. 17. AS 28.40.100(a) is amended by adding a new paragraph to read: 27 (24) "serious physical injury" has the meaning given in 28 AS 11.81.900(b). 29 * Sec. 18. AS 28.35.030(m)(1) is repealed. 30 * Sec. 19. REQUIRED STUDY AND REPORT. (a) The Department of Public Safety, 31 in conjunction with the Department of Law, the Department of Corrections, the Alaska Court
01 System, and the Alaska State Legislature, shall perform a comprehensive review of the 02 following issues by December 31, 1994: 03 (1) the means by which the mandatory forfeiture of vehicles used in the 04 commission of offenses related to driving while intoxicated may be implemented; and 05 (2) the means by which felony penalties may be applied to certain offenses 06 related to driving while intoxicated. 07 (b) The review required under (a) o this section shall consider the fiscal effect on the 08 state, deterrence of convicted and potential offenders, relevant policies of other governing 09 bodies, and potential funding sources. Also, the Department of Public Safety shall present a 10 report to the Nineteenth Alaska State Legislature that summarizes the conclusions of the 11 review described in this section and that recommends specific legislative action. 12 * Sec. 20. APPLICABILITY. The amendments made by this Act apply to offenses that 13 are committed on or after the effective date of this Act, except that references to previous 14 convictions include convictions occurring before, on, or after the effective date of this Act. 15 * Sec. 21. This Act takes effect July 1, 1994.