SCS CSHB 441(JUD): "An Act relating to criminal sentencing; relating to operating or driving a motor vehicle, aircraft, or watercraft while under the influence; relating to court-ordered treatment programs for certain offenders and offenses; amending Rule 35, Alaska Rules of Criminal Procedure; and providing for an effective date."
00 SENATE CS FOR CS FOR HOUSE BILL NO. 441(JUD) 01 "An Act relating to criminal sentencing; relating to operating or driving a motor 02 vehicle, aircraft, or watercraft while under the influence; relating to court-ordered 03 treatment programs for certain offenders and offenses; amending Rule 35, Alaska Rules 04 of Criminal Procedure; and providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 12.55.155(d)(17) is amended to read: 07 (17) except in the case of an offense defined by AS 11.41 or 08 AS 11.46.400, the [OR A] defendant [WHO] has [PREVIOUSLY] been convicted of 09 a class B or C felony, and [THE DEFENDANT], at the time of sentencing, [IS 10 ACTIVELY PARTICIPATING IN OR] has successfully completed a court-ordered 11 [STATE-APPROVED] treatment program that [IS RELEVANT TO THE OFFENSE 12 AND THAT] was begun after the offense was committed; 13 * Sec. 2. AS 28.15.201(d) is amended to read: 14 (d) A court revoking a driver's license, privilege to drive, or privilege to obtain
01 a license under AS 28.15.181(c), or the department when revoking a driver's license, 02 privilege to drive, or privilege to obtain a license under AS 28.15.165(c), may grant 03 limited license privileges if 04 (1) the revocation was for a misdemeanor conviction under 05 AS 28.35.030(a) and not for a violation of AS 28.35.032; 06 (2) the person has 07 (A) not been previously convicted and the limited license is not 08 granted during the first 30 days of the period of revocation; 09 (B) been previously convicted, the limited license is not 10 granted during the first 90 days of the period of revocation, and 11 (i) the person has successfully completed a court- 12 ordered treatment program under AS 28.35.028 or former 13 AS 28.35.030(p); or 14 (ii) the court or department requires the person to use an 15 ignition interlock device during the period of the limited license; 16 (3) the court or the department determines that 17 (A) the person's ability to earn a livelihood would be severely 18 impaired without a limited license; or 19 (B) the person has successfully completed a court-ordered 20 treatment program described under AS 28.35.028 or former AS 28.35.030(p) 21 and the person's ability to earn a livelihood, attend school, or provide for 22 family health would be severely impaired without a limited license; 23 (4) the court or the department determines that a limitation under (a) of 24 this section can be placed on the license that will enable the person to earn a livelihood 25 without excessive danger to the public; 26 (5) the court or the department determines that the person is enrolled in 27 and is in compliance with or has successfully completed the alcoholism screening, 28 evaluation, referral, and program requirements of the Department of Health and Social 29 Services under AS 28.35.030(h); and 30 (6) the person has not been previously convicted under 31 AS 28.15.291(a)(2), AS 28.35.030, or 28.35.032 while driving or operating a vehicle,
01 aircraft, or watercraft under a limited license issued under this section. 02 * Sec. 3. AS 28.35 is amended by adding a new section to article 2 to read: 03 Sec. 28.35.028. Court-ordered treatment for persons charged with a 04 violation of AS 28.35.030 or 28.35.032. (a) Notwithstanding another provision of 05 law, with the consent of the state and the defendant, the court may elect to proceed in a 06 criminal case under AS 28.35.030 or 28.35.032, including the case of a defendant 07 charged with violating the terms of probation, under the procedure provided in this 08 section and order the defendant to complete a court-ordered treatment program. The 09 state may not consent to a referral under this subsection unless the state has consulted 10 with the victim and explained the process and consequences of the referral to the 11 victim. A court may not elect to proceed under this section if the defendant has 12 previously participated in a court-ordered treatment program under this section two or 13 more times. 14 (b) Once the court elects to proceed under this section, the defendant shall 15 enter a no contest or guilty plea to the offense or shall admit to a probation violation, 16 as appropriate. The state and the defendant may enter into a plea agreement to 17 determine the offense or offenses to which the defendant is required to plead. If the 18 court accepts the agreement, the court shall enforce the terms of the agreement. The 19 court shall enter a judgment of conviction for the offense or offenses for which the 20 defendant has pleaded or an order finding that the defendant has violated probation, as 21 appropriate. A judgment of conviction or an order finding a probation violation must 22 set a schedule for payment of restitution owed by the defendant. In a judgment of 23 conviction and on probation conditions that the court considers appropriate, the court 24 may withhold pronouncement of a period of imprisonment or a fine to provide an 25 incentive for the defendant to complete recommended treatment successfully. 26 Imprisonment or a fine imposed by a court shall comply with AS 12.55 or any 27 mandatory minimum or other sentencing provision applicable to the offense. 28 However, notwithstanding Rule 35, Alaska Rules of Criminal Procedure, and any 29 other provision of law, the court, at any time after the period when a reduction of 30 sentence is normally available, may consider and reduce the defendant's sentence 31 based on the defendant's compliance with the treatment plan; when reducing a
01 sentence, the court (1) may not reduce the sentence below the mandatory minimum 02 sentence for the offense unless the court finds that the defendant has successfully 03 complied with and completed the treatment plan and that treatment plan approximated 04 the severity of the minimum period of imprisonment, and (2) may consider the 05 defendant's compliance with the treatment plan as a mitigating factor allowing a 06 reduction of a sentence under AS 12.55.155(a). A court entering an order finding the 07 defendant has violated probation may withhold pronouncement of disposition to 08 provide an incentive for the defendant to complete the recommended treatment 09 successfully. 10 (c) If the defendant does not successfully complete the treatment plan imposed 11 by the court under this section, the defendant's no contest or guilty plea or admission 12 to a probation violation to the court shall stand, and the sentence previously imposed 13 shall be executed or, if sentence has not yet been imposed, sentence shall be imposed 14 by the court. 15 (d) Notwithstanding any other provision of law to the contrary, the judge, the 16 state, the defendant, and the agencies involved in the defendant's treatment plan are 17 entitled to information and reports bearing on the defendant's assessment, treatment, 18 and progress. The victim is entitled to periodic reports on the defendant's progress and 19 participation. 20 (e) In addition to other conditions authorized under AS 12.30 or AS 12.55, a 21 court may impose the following conditions of bail or probation: 22 (1) require the defendant to submit to electronic monitoring; 23 (2) require the defendant to submit to house arrest. 24 (f) A court shall refer a defendant who is ordered to participate in a treatment 25 program under this section to an alcohol safety action program developed and 26 implemented or designated under AS 47.37.040(21) for screening, referral, and 27 monitoring. 28 (g) In addition to other conditions authorized under AS 12.30, a court may 29 require the defendant to take a drug or combination of drugs intended to prevent 30 substance abuse. 31 (h) In this section,
01 (1) "court-ordered treatment program" or "treatment plan" means a 02 treatment program for a person who consumes alcohol or drugs and that 03 (A) requires participation for at least 18 consecutive months; 04 (B) includes planning and treatment for alcohol or drug 05 addiction; 06 (C) includes emphasis on personal responsibility; 07 (D) provides in-court recognition of progress and sanctions for 08 relapses; 09 (E) requires payment of restitution to victims and completion 10 of community work service; 11 (F) includes physician approved treatment of physical addiction 12 and treatment of the psychological causes of addiction; 13 (G) includes a monitoring program and physical placement or 14 housing; and 15 (H) requires adherence to conditions of probation; 16 (2) "sentence" or "sentencing" includes a suspended imposition of 17 sentence as authorized under AS 12.55.085. 18 * Sec. 4. AS 28.35.030(b) is amended to read: 19 (b) Except as provided under (n) of this section, driving while under the 20 influence of an alcoholic beverage, inhalant, or controlled substance is a class A 21 misdemeanor. Upon [EXCEPT AS PROVIDED UNDER (p) OF THIS SECTION, 22 UPON] conviction, 23 (1) the court shall impose a minimum sentence of imprisonment of 24 (A) not less than 72 consecutive hours and a fine of not less 25 than $1,500 if the person has not been previously convicted; 26 (B) not less than 20 days and a fine of not less than $3,000 if 27 the person has been previously convicted once; 28 (C) not less than 60 days and a fine of not less than $4,000 if 29 the person has been previously convicted twice and is not subject to 30 punishment under (n) of this section; 31 (D) not less than 120 days and a fine of not less than $5,000 if
01 the person has been previously convicted three times and is not subject to 02 punishment under (n) of this section; 03 (E) not less than 240 days and a fine of not less than $6,000 if 04 the person has been previously convicted four times and is not subject to 05 punishment under (n) of this section; 06 (F) not less than 360 days and a fine of not less than $7,000 if 07 the person has been previously convicted more than four times and is not 08 subject to punishment under (n) of this section; 09 (2) the court may not 10 (A) suspend execution of sentence or grant probation except on 11 condition that the person 12 (i) serve the minimum imprisonment under (1) of this 13 subsection; and 14 (ii) pay the minimum fine required under (1) of this 15 subsection; 16 (B) suspend imposition of sentence; 17 (3) the court shall revoke the person's driver's license, privilege to 18 drive, or privilege to obtain a license under AS 28.15.181, and may order that the 19 motor vehicle, aircraft, or watercraft that was used in commission of the offense be 20 forfeited under AS 28.35.036; and 21 (4) the court may order that the person, while incarcerated or as a 22 condition of probation or parole, take a drug or combination of drugs intended to 23 prevent the consumption of an alcoholic beverage; a condition of probation or parole 24 imposed under this paragraph is in addition to any other condition authorized under 25 another provision of law. 26 * Sec. 5. AS 28.35.032(g) is amended to read: 27 (g) Upon [EXCEPT AS PROVIDED UNDER (r) OF THIS SECTION, 28 UPON] conviction under this section, 29 (1) the court shall impose a minimum sentence of imprisonment of 30 (A) not less than 72 consecutive hours and a fine of not less 31 than $1,500 if the person has not been previously convicted;
01 (B) not less than 20 days and a fine of not less than $3,000 if 02 the person has been previously convicted once; 03 (C) not less than 60 days and a fine of not less than $4,000 if 04 the person has been previously convicted twice and is not subject to 05 punishment under (p) of this section; 06 (D) not less than 120 days and a fine of not less than $5,000 if 07 the person has been previously convicted three times and is not subject to 08 punishment under (p) of this section; 09 (E) not less than 240 days and a fine of not less than $6,000 if 10 the person has been previously convicted four times and is not subject to 11 punishment under (p) of this section; 12 (F) not less than 360 days and a fine of not less than $7,000 if 13 the person has been previously convicted more than four times and is not 14 subject to punishment under (p) of this section; 15 (2) the court may not 16 (A) suspend execution of the sentence required by (1) of this 17 subsection or grant probation, except on condition that the person 18 (i) serve the minimum imprisonment under (1) of this 19 subsection; and 20 (ii) pay the minimum fine required under (1) of this 21 subsection; or 22 (B) suspend imposition of sentence; 23 (3) the court shall revoke the person's driver's license, privilege to 24 drive, or privilege to obtain a license under AS 28.15.181, and may order that the 25 motor vehicle, aircraft, or watercraft that was used in commission of the offense be 26 forfeited under AS 28.35.036; 27 (4) the court may order that the person, while incarcerated or as a 28 condition of probation or parole, take a drug or combination of drugs intended to 29 prevent the consumption of an alcoholic beverage; a condition of probation or parole 30 imposed under this paragraph is in addition to any other condition authorized under 31 another provision of law; and
01 (5) the sentence imposed by the court under this subsection shall run 02 consecutively with any other sentence of imprisonment imposed on the person. 03 * Sec. 6. AS 47.37.040 is amended to read: 04 Sec. 47.37.040. Duties of department. The department shall 05 (1) develop, encourage, and foster statewide, regional, and local plans 06 and programs for the prevention of alcoholism and drug abuse and treatment of 07 alcoholics, intoxicated persons, drug abusers, and inhalant abusers in cooperation with 08 public and private agencies, organizations, and individuals, and provide technical 09 assistance and consultation services for these purposes; 10 (2) coordinate the efforts and enlist the assistance of all public and 11 private agencies, organizations, and individuals interested in prevention of alcoholism, 12 drug abuse, and inhalant abuse, and treatment of alcoholics, intoxicated persons, drug 13 abusers, and inhalant abusers; 14 (3) cooperate with the Department of Corrections in establishing and 15 conducting programs to provide treatment for alcoholics, intoxicated persons, drug 16 abusers, and inhalant abusers in or on parole from penal institutions; 17 (4) cooperate with the Department of Education and Early 18 Development, school boards, schools, police departments, courts, and other public and 19 private agencies, organizations, and individuals in establishing programs for the 20 prevention of alcoholism, drug abuse, and inhalant abuse, and treatment of alcoholics, 21 intoxicated persons, drug abusers, and inhalant abusers, and preparing curriculum 22 materials for use at all levels of school education; 23 (5) prepare, publish, evaluate, and disseminate educational material 24 dealing with the nature and effects of alcohol and drugs, and the misuse of hazardous 25 volatile substances; 26 (6) develop and implement, as an integral part of treatment programs, 27 an educational program for use in the treatment of alcoholics, intoxicated persons, 28 drug abusers, and inhalant abusers that includes the dissemination of information 29 concerning the nature and effects of alcohol, drugs, and hazardous volatile substances; 30 (7) organize and foster training programs for all persons engaged in 31 treatment of alcoholics, intoxicated persons, drug abusers, and inhalant abusers, and
01 establish standards for training paraprofessional alcoholism, drug abuse, and inhalant 02 abuse workers; 03 (8) sponsor and encourage research into the causes and nature of 04 alcoholism, drug abuse, and inhalant abuse, and the treatment of alcoholics, 05 intoxicated persons, drug abusers, and inhalant abusers, and serve as a clearinghouse 06 for information relating to alcoholism, drug abuse, and inhalant abuse; 07 (9) specify uniform methods for keeping statistical information by 08 public and private agencies, organizations, and individuals, and collect and make 09 available relevant statistical information, including number of persons treated, 10 frequency of admission and readmission, and frequency and duration of treatment; 11 (10) conduct program planning activities approved by the Advisory 12 Board on Alcoholism and Drug Abuse; 13 (11) review all state health, welfare, and treatment plans to be 14 submitted for federal funding, and advise the commissioner on provisions to be 15 included relating to alcoholics, intoxicated persons, drug abusers, and inhalant 16 abusers; 17 (12) assist in the development of, and cooperate with, alcohol, drug 18 abuse, and inhalant abuse education and treatment programs for employees of state 19 and local governments and businesses and industries in the state; 20 (13) use the support and assistance of interested persons in the 21 community, particularly recovered alcoholics, drug abusers, and inhalant abusers, to 22 encourage alcoholics, drug abusers, and inhalant abusers to voluntarily undergo 23 treatment; 24 (14) cooperate with the Department of Public Safety and the 25 Department of Transportation and Public Facilities in establishing and conducting 26 programs designed to deal with the problem of persons operating motor vehicles while 27 under the influence of an alcoholic beverage, inhalant, or controlled substance, and 28 develop and approve alcohol information courses required to be taken by drivers under 29 AS 28.15 or made available to drivers to reduce points assessed for violation of traffic 30 laws; 31 (15) encourage hospitals and other appropriate health facilities to
01 admit without discrimination alcoholics, intoxicated persons, drug abusers, and 02 inhalant abusers and to provide them with adequate and appropriate treatment; 03 (16) encourage all health insurance programs to include alcoholism 04 and drug abuse as a covered illness; 05 (17) prepare an annual report covering the activities of the department 06 and notify the legislature that the report is available; 07 (18) develop and implement a training program on alcoholism and 08 drug abuse for employees of state and municipal governments, and private institutions; 09 (19) develop curriculum materials on drug and alcohol abuse and the 10 misuse of hazardous volatile substances for use in grades kindergarten through 12, as 11 well as a course of instruction for teachers to be charged with presenting the 12 curriculum; 13 (20) develop and implement or designate, in cooperation with other 14 state or local agencies, a juvenile alcohol safety action program that provides alcohol 15 and substance abuse screening, referral, and monitoring of persons under 18 years of 16 age who have been referred to it by 17 (A) a court in connection with a charge or conviction of a 18 violation or misdemeanor related to the use of alcohol or a controlled 19 substance; 20 (B) the agency responsible for the administration of motor 21 vehicle laws in connection with a license action related to the use of alcohol or 22 a controlled substance; or 23 (C) department staff after a delinquency adjudication that is 24 related to the use of alcohol or a controlled substance; 25 (21) develop and implement, or designate, in cooperation with other 26 state or local agencies, an alcohol safety action program that provides alcohol and 27 substance abuse screening, referral, and monitoring services to persons who have been 28 referred by a court in connection with a charge or conviction of a misdemeanor 29 involving the use of a motor vehicle, aircraft, or watercraft and alcohol or a controlled 30 substance, referred by a court under AS 28.35.028, or referred by an agency of the 31 state with the responsibility for administering motor vehicle laws in connection with a
01 driver's license action involving the use of alcohol or a controlled substance. 02 * Sec. 7. AS 28.35.030(p) and 28.35.032(r) are repealed. 03 * Sec. 8. The uncodified law of the State of Alaska is amended by adding a new section to 04 read: 05 INDIRECT COURT RULE AMENDMENT. AS 28.35.028(b), added by sec. 2 of this 06 Act, has the effect of amending Rule 35, Alaska Rules of Criminal Procedure, by allowing a 07 court to consider and reduce a criminal sentence outside of the time periods currently 08 provided by that rule. 09 * Sec. 9. The uncodified law of the State of Alaska is amended by adding a new section to 10 read: 11 TRANSITION. Notwithstanding sec. 6 of this Act, defendants participating in a court- 12 ordered treatment program under AS 28.35.030(p) or 28.35.032(r) or the therapeutic court 13 pilot program created by ch. 64, SLA 2001, as amended by ch. 109, SLA 2004, on the 14 effective date of this Act, shall continue in their respective programs under the terms of that 15 program until the individual program is completed. 16 * Sec. 10. This Act takes effect immediately under AS 01.10.070(c).