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