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HB 2: "An Act establishing the driving while under the influence diversion program for eligible persons charged with driving while under the influence or refusal to submit to a chemical test; relating to judgment for restitution; relating to suspended imposition of sentence; relating to records kept by the Department of Administration; relating to operating a vehicle, aircraft, or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance; relating to refusal to submit to a chemical test; amending Rule 9, Alaska Rules of Administration, and Rule 39, Alaska Rules of Criminal Procedure; and providing for an effective date."

00 HOUSE BILL NO. 2 01 "An Act establishing the driving while under the influence diversion program for 02 eligible persons charged with driving while under the influence or refusal to submit to a 03 chemical test; relating to judgment for restitution; relating to suspended imposition of 04 sentence; relating to records kept by the Department of Administration; relating to 05 operating a vehicle, aircraft, or watercraft while under the influence of an alcoholic 06 beverage, inhalant, or controlled substance; relating to refusal to submit to a chemical 07 test; amending Rule 9, Alaska Rules of Administration, and Rule 39, Alaska Rules of 08 Criminal Procedure; and providing for an effective date." 09 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10 * Section 1. AS 04.16.160(a) is amended to read: 11 (a) Except as otherwise provided by law, a person who is 21 years of age or 12 older may not purchase alcoholic beverages if the person has been ordered to refrain

01 from consuming alcoholic beverages under AS 12.55.015(a)(13) or as part of a 02 sentence for conviction of a crime under AS 28.35.030, 28.35.032, or a similar 03 municipal ordinance, as part of the driving while under the influence diversion 04 program under AS 28.35.043, as a condition of probation or parole from a conviction 05 under AS 28.35.030, 28.35.032, or a similar municipal ordinance, or as a condition of 06 probation or parole for any other crime. The restriction on purchasing alcoholic 07 beverages applies during the period that the person is required to refrain from 08 consuming alcoholic beverages under the sentence or condition of probation or parole. 09 * Sec. 2. AS 09.38.500(8) is amended to read: 10 (8) "judgment of restitution" 11 (A) includes restitution ordered 12 (i) under AS 47.12.120 that is considered as a civil 13 judgment enforceable by execution under AS 47.12.170; [AND] 14 (ii) as part of a sentence under AS 12.55.025(f) that is 15 considered as a judgment for money entered in a civil action; and 16 (iii) as part of the diversion agreement under 17 AS 28.35.043; 18 (B) does not include a judgment for 19 (i) civil damages for torts under state law; or 20 (ii) restitution as a result of a violation of state law that 21 is not a felony or misdemeanor; 22 * Sec. 3. AS 12.55.039(b) is amended to read: 23 (b) A court may not fail to impose the surcharge required under this section. 24 The surcharge may not be waived, deferred, or suspended, unless the defendant is a 25 participant in the driving while under the influence diversion program under 26 AS 28.35.043. A court may allow a defendant who is unable to pay the surcharge 27 required to be imposed under this section to perform community work under 28 AS 12.55.055(c) in lieu of the surcharge. 29 * Sec. 4. AS 12.55.078(a) is amended to read: 30 (a) Except as provided in AS 28.35.043 or (f) of this section, if a person is 31 found guilty or pleads guilty to a crime, the court may, with the consent of the

01 defendant and the prosecution and without imposing or entering a judgment of guilt, 02 defer further proceedings and place the person on probation. The period of probation 03 may not exceed the applicable terms set out in AS 12.55.090(c). The court may not 04 impose a sentence of imprisonment under this subsection. 05 * Sec. 5. AS 12.55.155(d) is amended to read: 06 (d) The following factors shall be considered by the sentencing court if proven 07 in accordance with this section, and may allow imposition of a sentence below the 08 presumptive range set out in AS 12.55.125: 09 (1) the offense was principally accomplished by another person, and 10 the defendant manifested extreme caution or sincere concern for the safety or well- 11 being of the victim; 12 (2) the defendant, although an accomplice, played only a minor role in 13 the commission of the offense; 14 (3) the defendant committed the offense under some degree of duress, 15 coercion, threat, or compulsion insufficient to constitute a complete defense, but that 16 significantly affected the defendant's conduct; 17 (4) the conduct of a youthful defendant was substantially influenced by 18 another person more mature than the defendant; 19 (5) the conduct of an aged defendant was substantially a product of 20 physical or mental infirmities resulting from the defendant's age; 21 (6) in a conviction for assault under AS 11.41.200 - 11.41.220, the 22 defendant acted with serious provocation from the victim; 23 (7) except in the case of a crime defined by AS 11.41.410 - 11.41.470, 24 the victim provoked the crime to a significant degree; 25 (8) before the defendant knew that the criminal conduct had been 26 discovered, the defendant fully compensated or made a good faith effort to fully 27 compensate the victim of the defendant's criminal conduct for any damage or injury 28 sustained; 29 (9) the conduct constituting the offense was among the least serious 30 conduct included in the definition of the offense; 31 (10) the defendant was motivated to commit the offense solely by an

01 overwhelming compulsion to provide for emergency necessities for the defendant's 02 immediate family; 03 (11) after commission of the offense for which the defendant is being 04 sentenced, the defendant assisted authorities to detect, apprehend, or prosecute other 05 persons who committed an offense; 06 (12) the facts surrounding the commission of the offense and any 07 previous offenses by the defendant establish that the harm caused by the defendant's 08 conduct is consistently minor and inconsistent with the imposition of a substantial 09 period of imprisonment; 10 (13) the defendant is convicted of an offense specified in AS 11.71 and 11 the offense involved small quantities of a controlled substance; 12 (14) the defendant is convicted of an offense specified in AS 11.71 and 13 the offense involved the distribution of a controlled substance, other than a schedule 14 IA controlled substance, to a personal acquaintance who is 19 years of age or older for 15 no profit; 16 (15) the defendant is convicted of an offense specified in AS 11.71 and 17 the offense involved the possession of a small amount of a controlled substance for 18 personal use in the defendant's home; 19 (16) in a conviction for assault or attempted assault or for homicide or 20 attempted homicide, the defendant acted in response to domestic violence perpetrated 21 by the victim against the defendant and the domestic violence consisted of aggravated 22 or repeated instances of assaultive behavior; 23 (17) except in the case of an offense defined by AS 11.41 or 24 AS 11.46.400, the defendant has been convicted of a class B or C felony, and, at the 25 time of sentencing, has successfully completed a court-ordered treatment program as 26 defined in AS 28.35.028 that was begun after the offense was committed; 27 (18) except in the case of an offense defined under AS 11.41 or 28 AS 11.46.400 or a defendant who has previously been convicted of a felony, the 29 defendant committed the offense while suffering from a mental disease or defect as 30 defined in AS 12.47.130 that was insufficient to constitute a complete defense but that 31 significantly affected the defendant's conduct;

01 (19) the defendant is convicted of an offense under AS 11.71, and the 02 defendant sought medical assistance for another person who was experiencing a drug 03 overdose contemporaneously with the commission of the offense; 04 (20) except in the case of an offense defined under AS 11.41 or 05 AS 11.46.400, the defendant committed the offense while suffering from a condition 06 diagnosed 07 (A) as a fetal alcohol spectrum disorder, the fetal alcohol 08 spectrum disorder substantially impaired the defendant's judgment, behavior, 09 capacity to recognize reality, or ability to cope with the ordinary demands of 10 life, and the fetal alcohol spectrum disorder, though insufficient to constitute a 11 complete defense, significantly affected the defendant's conduct; in this 12 subparagraph, "fetal alcohol spectrum disorder" means a condition of impaired 13 brain function in the range of permanent birth defects caused by maternal 14 consumption of alcohol during pregnancy; or 15 (B) as combat-related post-traumatic stress disorder or combat- 16 related traumatic brain injury, the combat-related post-traumatic stress disorder 17 or combat-related traumatic brain injury substantially impaired the defendant's 18 judgment, behavior, capacity to recognize reality, or ability to cope with the 19 ordinary demands of life, and the combat-related post-traumatic stress disorder 20 or combat-related traumatic brain injury, though insufficient to constitute a 21 complete defense, significantly affected the defendant's conduct; in this 22 subparagraph, "combat-related post-traumatic stress disorder or combat-related 23 traumatic brain injury" means post-traumatic stress disorder or traumatic brain 24 injury resulting from combat with an enemy of the United States in the line of 25 duty while on active duty as a member of the armed forces of the United 26 States; nothing in this subparagraph is intended to limit the application of (18) 27 of this subsection; 28 (21) the defendant 29 (A) [,] as a condition of release ordered by the court, 30 successfully completed an alcohol and substance abuse monitoring program 31 established under AS 47.38.020;

01 (B) successfully completed the driving while under the 02 influence diversion program under AS 28.35.043. 03 * Sec. 6. AS 12.61.010(a) is amended to read: 04 (a) Victims of crimes have the following rights: 05 (1) the right to be present during any proceeding in 06 (A) the prosecution and sentencing of a defendant if the 07 defendant has the right to be present, including being present during testimony 08 even if the victim is likely to be called as a witness; 09 (B) the adjudication of a minor as provided under 10 AS 47.12.110; 11 (2) the right to be notified by the appropriate law enforcement agency 12 or the prosecuting attorney of any request for a continuance that may substantially 13 delay the prosecution and of the date of trial, sentencing, including a proceeding 14 before a three-judge panel under AS 12.55.175, an appeal, and any hearing in which 15 the defendant's release from custody is considered; 16 (3) the right to be notified that a sentencing hearing or a court 17 proceeding to which the victim has been subpoenaed will not occur as scheduled; 18 (4) the right to receive protection from harm and threats of harm 19 arising out of cooperation with law enforcement and prosecution efforts and to be 20 provided with information as to the protection available; 21 (5) the right to be notified of the procedure to be followed to apply for 22 and receive any compensation under AS 18.67; 23 (6) at the request of the prosecution or a law enforcement agency, the 24 right to cooperate with the criminal justice process without loss of pay and other 25 employee benefits except as authorized by AS 12.61.017 and without interference in 26 any form by the employer of the victim of crime; 27 (7) the right to obtain access to immediate medical assistance and not 28 to be detained for an unreasonable length of time by a law enforcement agency before 29 having medical assistance administered; however, an employee of the law 30 enforcement agency may, if necessary, accompany the person to a medical facility to 31 question the person about the criminal incident if the questioning does not hinder the

01 administration of medical assistance; 02 (8) the right to make a written or oral statement for use in preparation 03 of the presentence report of a felony defendant; 04 (9) the right to appear personally at the defendant's sentencing hearing 05 to present a written statement and to give sworn testimony or an unsworn oral 06 presentation; 07 (10) the right to be informed by the prosecuting attorney, at any time 08 after the defendant's conviction, about the complete record of the defendant's 09 convictions; 10 (11) the right to notice under AS 12.47.095 concerning the status of the 11 defendant found not guilty by reason of insanity; 12 (12) the right to notice under AS 33.16.087 of a hearing concerning 13 special medical parole of the defendant; 14 (13) the right to notice under AS 33.16.120 of a hearing to consider or 15 review discretionary parole of the defendant; 16 (14) the right to notice under AS 33.30.013 of the release or escape of 17 the defendant; [AND] 18 (15) the right to be notified orally and in writing of and receive 19 information about the office of victims' rights from the law enforcement officer 20 initially investigating the crime and from the prosecuting attorney assigned to the 21 offense; at a minimum, the information provided must include the address, telephone 22 number, and Internet address of the office of victims' rights; this paragraph 23 (A) applies only to victims of felonies and to victims of class A 24 misdemeanors if the class A misdemeanor is a crime involving domestic 25 violence or a crime against a person under AS 11.41; if the victim is an 26 unemancipated minor, the law enforcement officer and the prosecuting 27 attorney shall also provide the notice required by this paragraph to the parent 28 or guardian of the minor; 29 (B) is satisfied if, at the time of initial contact with the crime 30 victim, the investigating officer and prosecuting attorney each give each crime 31 victim a brochure or other written material prepared by the office of victims'

01 rights and provided to law enforcement agencies for that purpose; and 02 (16) the right to notice under AS 28.35.043 of a hearing on a 03 petition for diversion agreement and the right to make a written or oral 04 statement on the petition. 05 * Sec. 7. AS 18.85.100(a) is amended to read: 06 (a) An indigent person who is under formal charge of having committed a 07 serious crime and the crime has been the subject of an initial appearance or subsequent 08 proceeding, or is being detained under a conviction of a serious crime, or is on 09 probation or parole, or is entitled to representation under the Supreme Court 10 Delinquency or Child in Need of Aid Rules, as a participant in the driving while 11 under the influence diversion program under AS 28.35.043, or at a review hearing 12 under AS 47.12.105(d), or is isolated, quarantined, or required to be tested under an 13 order issued under AS 18.15.355 - 18.15.395, or is a respondent in a proceeding under 14 AS 47.30, is entitled 15 (1) to be represented, in connection with the crime or proceeding, by 16 an attorney to the same extent as a person retaining an attorney is entitled; and 17 (2) to be provided with the necessary services and facilities of this 18 representation, including investigation and other preparation. 19 * Sec. 8. AS 28.15.151(a) is amended to read: 20 (a) The department shall maintain a file of 21 (1) every driver's license application, license or permit, and duplicate 22 driver's license issued by it; 23 (2) every license that has been suspended, revoked, canceled, limited, 24 restricted, or denied, and the reasons for those actions; 25 (3) all accident reports required to be forwarded to the department 26 under this title; [AND] 27 (4) every disqualification of an individual from operating a 28 commercial motor vehicle; and 29 (5) every diversion agreement entered into by an individual under 30 AS 28.35.043. 31 * Sec. 9. AS 28.35.030(b) is amended to read:

01 (b) Except as provided under (n) of this section, driving while under the 02 influence of an alcoholic beverage, inhalant, or controlled substance is a class A 03 misdemeanor. Upon conviction, 04 (1) the court shall impose a minimum sentence of imprisonment of 05 (A) not less than 72 consecutive hours, require the person to 06 use an ignition interlock device after the person regains the privilege, including 07 any limited privilege, to operate a motor vehicle for a minimum of six months, 08 and impose a fine of not less than $1,500 if the person has not been previously 09 convicted and the person did not complete the driving while under the 10 influence diversion program under AS 28.35.043; 11 (B) not less than 20 days, require the person to use an ignition 12 interlock device after the person regains the privilege, including any limited 13 privilege, to operate a motor vehicle for a minimum of 12 months, and impose 14 a fine of not less than $3,000 if the person has been previously convicted once; 15 (C) not less than 60 days, require the person to use an ignition 16 interlock device after the person regains the privilege, including any limited 17 privilege, to operate a motor vehicle for a minimum of 18 months, and impose 18 a fine of not less than $4,000 if the person has been previously convicted twice 19 and is not subject to punishment under (n) of this section; 20 (D) not less than 120 days, require the person to use an ignition 21 interlock device after the person regains the privilege, including any limited 22 privilege, to operate a motor vehicle for a minimum of 24 months, and impose 23 a fine of not less than $5,000 if the person has been previously convicted three 24 times and is not subject to punishment under (n) of this section; 25 (E) not less than 240 days, require the person to use an ignition 26 interlock device after the person regains the privilege, including any limited 27 privilege, to operate a motor vehicle for a minimum of 30 months, and impose 28 a fine of not less than $6,000 if the person has been previously convicted four 29 times and is not subject to punishment under (n) of this section; 30 (F) not less than 360 days, require the person to use an ignition 31 interlock device after the person regains the privilege, including any limited

01 privilege, to operate a motor vehicle for a minimum of 36 months, and impose 02 a fine of not less than $7,000 if the person has been previously convicted more 03 than four times and is not subject to punishment under (n) of this section; 04 (2) the court may not 05 (A) suspend execution of sentence or grant probation except on 06 condition that the person 07 (i) serve the minimum imprisonment under (1) of this 08 subsection; 09 (ii) pay the minimum fine required under (1) of this 10 subsection; 11 (B) suspend imposition of sentence; or 12 (C) suspend the requirement for an ignition interlock device for 13 a violation of (a)(1) of this section involving an alcoholic beverage or 14 intoxicating liquor, singly or in combination, or a violation of (a)(2) of this 15 section; 16 (3) the court shall revoke the person's driver's license, privilege to 17 drive, or privilege to obtain a license under AS 28.15.181, and may order that the 18 motor vehicle, aircraft, or watercraft that was used in commission of the offense be 19 forfeited under AS 28.35.036; and 20 (4) the court may order that the person, while incarcerated or as a 21 condition of probation or parole, take a drug or combination of drugs intended to 22 prevent the consumption of an alcoholic beverage; a condition of probation or parole 23 imposed under this paragraph is in addition to any other condition authorized under 24 another provision of law. 25 * Sec. 10. AS 28.35.032(g) is amended to read: 26 (g) Upon conviction under this section, 27 (1) the court shall impose a minimum sentence of imprisonment of 28 (A) not less than 72 consecutive hours, require the person to 29 use an ignition interlock device after the person regains the privilege to operate 30 a motor vehicle for a minimum of six months, and impose a fine of not less 31 than $1,500 if the person has not been previously convicted and the person

01 did not complete the driving while under the influence diversion program 02 under AS 28.35.043; 03 (B) not less than 20 days, require the person to use an ignition 04 interlock device after the person regains the privilege to operate a motor 05 vehicle for a minimum of 12 months, and impose a fine of not less than $3,000 06 if the person has been previously convicted once; 07 (C) not less than 60 days, require the person to use an ignition 08 interlock device after the person regains the privilege to operate a motor 09 vehicle for a minimum of 18 months, and impose a fine of not less than $4,000 10 if the person has been previously convicted twice and is not subject to 11 punishment under (p) of this section; 12 (D) not less than 120 days, require the person to use an ignition 13 interlock device after the person regains the privilege to operate a motor 14 vehicle for a minimum of 24 months, and impose a fine of not less than $5,000 15 if the person has been previously convicted three times and is not subject to 16 punishment under (p) of this section; 17 (E) not less than 240 days, require the person to use an ignition 18 interlock device after the person regains the privilege to operate a motor 19 vehicle for a minimum of 30 months, and impose a fine of not less than $6,000 20 if the person has been previously convicted four times and is not subject to 21 punishment under (p) of this section; 22 (F) not less than 360 days, require the person to use an ignition 23 interlock device after the person regains the privilege to operate a motor 24 vehicle for a minimum of 36 months, and impose a fine of not less than $7,000 25 if the person has been previously convicted more than four times and is not 26 subject to punishment under (p) of this section; 27 (2) the court may not 28 (A) suspend execution of the sentence required by (1) of this 29 subsection or grant probation, except on condition that the person 30 (i) serve the minimum imprisonment under (1) of this 31 subsection;

01 (ii) pay the minimum fine required under (1) of this 02 subsection; 03 (B) suspend imposition of sentence, except for a person who 04 is a participant in the driving while under the influence diversion program 05 under AS 28.35.043; or 06 (C) suspend the requirement for an ignition interlock device; 07 (3) the court shall revoke the person's driver's license, privilege to 08 drive, or privilege to obtain a license under AS 28.15.181, and may order that the 09 motor vehicle, aircraft, or watercraft that was used in commission of the offense be 10 forfeited under AS 28.35.036; 11 (4) the court may order that the person, while incarcerated or as a 12 condition of probation or parole, take a drug or combination of drugs intended to 13 prevent the consumption of an alcoholic beverage; a condition of probation or parole 14 imposed under this paragraph is in addition to any other condition authorized under 15 another provision of law; and 16 (5) 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. 11. AS 28.35 is amended by adding new sections to read: 19 Sec. 28.35.043. Driving while under the influence diversion program. (a) 20 The driving while under the influence diversion program is established in the Alaska 21 Court System. 22 (b) At the initial court appearance or arraignment of a person for an offense 23 under AS 28.35.030 or 28.35.032, the court shall inform a defendant charged under 24 AS 28.35.030 or 28.35.032 that the defendant may be eligible for participation in the 25 driving while under the influence diversion program. A defendant is eligible if the 26 defendant 27 (1) has never been convicted under AS 28.35.030, 28.35.032, or a 28 similar law in another jurisdiction; for purposes of this paragraph, a prior conviction 29 does not include a violation under AS 04.16.050 or a similar law in another 30 jurisdiction; 31 (2) does not have a pending charge under AS 28.35.030, 28.35.032, or

01 a similar law in another jurisdiction; 02 (3) was not charged with any other criminal charges in the present 03 offense and the present offense did not involve an accident resulting in death or in 04 physical injury to any person other than the defendant; 05 (4) does not have a pending charge under AS 11.41.100 - 11.41.140 or 06 AS 11.41.200 - 11.41.230, or a similar law in another jurisdiction, that resulted from 07 the defendant's operation of a motor vehicle; 08 (5) at the time of the commission of the present offense, was not 09 participating in the driving while under the influence diversion program under this 10 section or in a similar program in another jurisdiction; 11 (6) has not, within 15 years before the date of the commission of the 12 present offense, participated in the driving while under the influence diversion 13 program in this state or a similar program in another jurisdiction; 14 (7) did not hold a commercial driver's license on the date of the 15 commission of the present offense; 16 (8) was not operating a commercial motor vehicle at the time of the 17 commission of the present offense. 18 (c) A defendant who is eligible for the driving while under the influence 19 diversion program shall file a petition and a filing fee in the amount of $490 with the 20 court to request admittance to the diversion program. The petition shall be filed within 21 30 days after the date of the defendant's first appearance before a judicial officer, 22 unless a later filing date is allowed by the court for good cause. For purposes of this 23 subsection, an objection to the complaint, a motion to suppress, or a motion for an 24 omnibus hearing do not constitute good cause. A petition may not be filed after entry 25 of a guilty plea or a no contest plea or after the commencement of a trial on the charge. 26 (d) Notwithstanding (c) of this section, a petition may be filed up to 14 days 27 after the date the prosecuting attorney sends laboratory test results of the defendant's 28 urine or blood sample analysis to the defendant's attorney, or to the defendant if the 29 defendant is unrepresented, if 30 (1) the charging document alleges the defendant was driving under the 31 influence of an alcoholic beverage, inhalant, or controlled substance;

01 (2) the defendant has not received notice of what the defendant's blood 02 alcohol content was at the time the conduct occurred or if at the time the conduct 03 occurred the defendant had less than 0.08 percent by weight of alcohol in the blood; 04 and 05 (3) a police officer obtained a urine or blood sample from the 06 defendant. 07 (e) A petition for admittance into the driving while under the influence 08 diversion program shall be made using a form prescribed by the Alaska Court System 09 and made available to a defendant at the initial court appearance or arraignment and 10 include 11 (1) a plea of guilty or no contest to the charge of 12 (A) driving while under the influence of an alcoholic beverage, 13 inhalant, or controlled substance under AS 28.35.030, signed by the defendant; 14 or 15 (B) refusal to submit to a chemical test under AS 28.35.032, 16 signed by the defendant; 17 (2) a sworn statement by the defendant that the defendant is eligible to 18 enter into the driving while under the influence diversion program; 19 (3) an agreement by the defendant to complete a screening interview to 20 determine the possible existence and degree of an alcohol or substance abuse problem 21 at an agency or organization designated by the court; 22 (4) an agreement by the defendant to complete, at the defendant's 23 expense, the program of treatment indicated necessary by the screening interview 24 under (3) of this subsection or if, following two negative screening reports of an 25 alcohol or substance abuse problem, ordered by the court; 26 (5) an agreement by the defendant not to use alcoholic beverages, 27 inhalants, or controlled substances during the driving while under the influence 28 diversion program; this agreement does not preclude 29 (A) the consumption of sacramental wine given or provided as 30 part of a religious rite or service; 31 (B) the defendant's use of a prescription drug prescribed for the

01 defendant if the defendant uses the prescribed drug as directed; 02 (C) the defendant's use of a nonprescription drug used as 03 directed on the nonprescription drug's label; 04 (6) a notice to the defendant that, if the court receives notice during the 05 course of the diversion program that the defendant committed an offense under 06 AS 28.35.029, 28.35.030, or 28.35.032, the defendant will be in violation of the 07 diversion agreement; 08 (7) an agreement by the defendant to keep the court advised of the 09 defendant's current mailing address during the course of the diversion program; 10 (8) an acknowledgment by the defendant that failure to complete the 11 diversion program will result in subsequent action upon the charge, or may result in 12 the filing of other charges based on the same criminal episode, and that by 13 participation in the diversion program, the defendant has not been placed in jeopardy 14 for the same offense until completion of the program and dismissal of the charge with 15 prejudice; 16 (9) an agreement by the defendant to pay court-appointed attorney fees 17 as determined by the court before the completion of the diversion program; and 18 (10) an agreement by the defendant to pay restitution if ordered by the 19 court, during the diversion period on a schedule determined by the court. 20 (f) The court may allow installment payments for the filing fee for a petition 21 under (c) of this section or may waive all or part of the filing fee or court-appointed 22 attorney fees if a defendant is indigent. 23 (g) The prosecuting attorney may, within 15 days after the date of service, file 24 a written objection to the petition and a request for a hearing. 25 (h) If the commission of the offense resulted in damage to the property of a 26 person other than the defendant, the victim of the property damage has a right to be 27 present and heard at any hearing on a petition for diversion. 28 (i) After the time requested for a hearing has expired or after a hearing 29 requested under (g) of this section has occurred, the court shall determine whether to 30 grant or deny a petition for admittance into the driving while under the influence 31 diversion program under this section. In making a determination under this section, the

01 court 02 (1) shall consider whether a diversion agreement will benefit the 03 defendant and the community; 04 (2) may take into consideration whether 05 (A) there was an early recognition by the defendant during any 06 previous court proceedings that a course of diagnosis and treatment of problem 07 drinking, alcoholism, or substance abuse would be beneficial; 08 (B) there is reasonable probability that the defendant will 09 cooperate with the diagnostic assessment and treatment agencies; 10 (C) the defendant will observe the restrictions contained in the 11 diversion agreement; 12 (D) the offense was committed in a motor vehicle and there 13 was a passenger in the motor vehicle who was under 18 years of age and at 14 least three years younger than the defendant; 15 (3) shall deny the petition if 16 (A) after the date the defendant filed the petition, the defendant 17 was charged or convicted under AS 28.35.030, 28.35.032, or a similar law in 18 another jurisdiction for a different criminal episode; 19 (B) the defendant failed to appear at an arraignment on the 20 present offense without good cause; 21 (C) after the date the defendant filed the petition, the defendant 22 entered into the driving while under the influence diversion program or any 23 similar court-ordered alcohol or drug rehabilitation program, other than a 24 program entered into as a result of the charge for the present offense, in this 25 state or in another jurisdiction; 26 (D) after the date the defendant filed the petition, the defendant 27 was charged with or convicted of an offense under AS 11.41.100 - 11.41.230 28 that resulted from the operation of a motor vehicle in this state or in another 29 jurisdiction; 30 (E) the defendant has been convicted of a prior offense under 31 AS 28.35.030 or 28.35.032;

01 (4) may not deny the petition because the defendant is a member of the 02 military and has been called or might be called to active duty and the military service 03 will impair the defendant's ability to complete the diversion program; 04 (5) may not deny the petition because the defendant has sought out or 05 entered into a treatment program that is not court-ordered, before the court issues a 06 decision on the petition, or because the defendant has participated in court-ordered 07 treatment in another case. 08 (j) If a court grants a petition for admittance into the driving while under the 09 influence diversion program, the court shall accept the guilty plea or no contest plea 10 filed as part of the petition under (e) of this section, but shall withhold entry of a 11 judgment of conviction. The court shall sign the petition and indicate the date the 12 diversion period begins and ends and the date on which the driving while under the 13 influence offense occurred. A diversion agreement shall be for a period of one year 14 after the date the court grants the petition. During the diversion period, the court shall 15 stay further criminal offense proceedings pending completion of the diversion 16 agreement or termination of the diversion agreement. If the defendant has not already 17 been processed by the Department of Corrections or a municipal correctional facility 18 on the charge of driving while under the influence of an alcoholic beverage, inhalant, 19 or controlled substance under AS 28.35.030 or refusal to submit to a chemical test 20 under AS 28.35.032, the court shall require the defendant to submit to processing. 21 (k) The signed and dated petition is the diversion agreement between the 22 defendant and the court. The court shall make the diversion agreement part of the 23 record of the case. The court shall notify the Department of Administration of the 24 diversion agreement within 48 hours after granting the petition. 25 (l) If the court denies a petition submitted under (e) of this section, the court 26 shall proceed with the criminal case on the charges brought against the defendant. The 27 guilty plea or no contest plea filed as part of the petition for admittance into the 28 driving while under the influence diversion program under (e) of this section may not 29 be used in the offense proceeding. A statement by the defendant about the offense 30 made during the course of screening or a treatment program to a person employed by 31 the treatment program may not be offered or received as evidence in any criminal or

01 civil action or proceeding arising out of the conduct on which the charge of driving 02 while under the influence of an alcoholic beverage, inhalant, or controlled substance 03 under AS 28.35.030, or the charge of refusal to submit to a chemical test under 04 AS 28.35.032, is based. 05 (m) The court may allow a defendant who is an active duty member of the 06 military to participate in a comparable treatment program conducted by or authorized 07 by a government entity in another jurisdiction to satisfy a treatment program 08 requirement as part of the defendant's diversion agreement. 09 (n) If a victim impact program exists in the community in which the defendant 10 resides, a court may order the defendant to attend a victim impact treatment session as 11 part of the defendant's diversion agreement. If the court orders attendance under this 12 subsection, the court may require the defendant to pay a fee of not less than $5 and not 13 more than $50 to the victim impact program to offset the cost of the defendant's 14 participation. 15 (o) A defendant may file a motion for an extension of the diversion period 16 within 30 days before the end of the diversion period or, if the defendant is an active 17 duty member of the military, at any time before the end of the diversion period. 18 (p) The court may grant a motion for extension of the driving while under the 19 influence diversion program if the court finds the defendant made a good faith effort 20 to complete the conditions of the diversion agreement and the defendant is able to 21 complete the conditions of the diversion agreement within the requested extended 22 diversion period. Only one extension may be granted for not more than 180 days from 23 the date the original diversion period ended, unless the defendant is an active duty 24 member of the military or is a member of the military that has received active duty 25 orders and the defendant demonstrates the military service will impair the defendant's 26 ability to complete the conditions of the diversion agreement and no comparable 27 treatment program is available. 28 (q) If the court grants a motion for extension, the defendant shall fully comply 29 with the conditions of the diversion agreement within the extended diversion period. If 30 the court finds the defendant failed to comply with the diversion agreement within the 31 extended diversion period, the court shall enter a guilty plea or no contest plea filed as

01 part of the petition under (e) of this section, shall enter a judgment of conviction, and 02 shall sentence the defendant. 03 (r) If the court denies a motion for extension, the court shall enter the guilty 04 plea or no contest plea included in the petition under (e) of this section, shall enter a 05 judgment of conviction, and shall sentence the defendant. 06 (s) At any time before the completion of a defendant's diversion period and 07 dismissal with prejudice, the court may, on its own motion or on the motion of the 08 prosecuting attorney, issue an order requiring the defendant to appear and show cause 09 as to why the court should not terminate the diversion agreement. The order to show 10 cause must 11 (1) state the reasons for the proposed termination; 12 (2) specify the amount of any fees owed and, if the amount owed is 13 $500 or less, inform the defendant that the court may dismiss with prejudice the 14 charge of driving while under the influence if the person has complied with and 15 performed all of the conditions of the diversion agreement and pays the remaining 16 amount before or on the date of the hearing; and 17 (3) set an appearance date. 18 (t) At an order to show cause hearing, the court 19 (1) shall terminate the diversion agreement and 20 (A) enter the guilty plea or no contest plea that was filed as part 21 of the petition under (e) of this section if 22 (i) the defendant fails to appear at a hearing on the order 23 to show cause; 24 (ii) the court finds by a preponderance of the evidence 25 that the defendant no longer qualifies for diversion under the conditions 26 described in (b) of this section; or 27 (iii) the court finds by a preponderance of the evidence 28 that the defendant failed to fulfill the terms of the diversion agreement; 29 (B) dismiss the charge with prejudice if the defendant has 30 complied with and performed all of the conditions of the defendant's diversion 31 agreement, except that the defendant owes $500 or less of the fees required,

01 and the defendant pays the balance of any fees owed before the hearing; 02 (2) may not terminate a diversion agreement for failure to pay 03 restitution if the defendant has otherwise complied with and performed all of the 04 conditions of the diversion agreement. 05 (u) If the court terminates the diversion agreement, the court may take into 06 account any time toward partial fulfillment of the diversion agreement by the 07 defendant at sentencing. 08 (v) After the conclusion of the defendant's diversion period, a defendant who 09 has complied with and satisfied the conditions of the diversion agreement may apply 10 by motion to the court for an order dismissing the charge with prejudice. 11 (w) If a defendant does not file a motion for dismissal within six months after 12 the conclusion of the defendant's diversion period, the court may enter an order 13 dismissing the charge with prejudice if the court finds that the defendant fully 14 complied with and performed the conditions of the diversion agreement. Before a 15 court enters an order dismissing the charge with prejudice, the court shall enter a 16 judgment for any remaining amount of restitution owed by the defendant. 17 (x) If a defendant is an active duty member of the military or is a member of 18 the military, the court shall allow the defendant's appearance by telephone or by other 19 means, if the defendant's military service authorizes the appearance. If the defendant's 20 military service prohibits the defendant's appearance by telephone or other means and 21 prohibits the defendant from aiding and assisting the attorney who would appear on 22 the defendant's behalf, the court shall stay a termination proceeding. 23 (y) Except as prohibited by federal law or regulation, every provider of a 24 screening interview and subsequent treatment programs to which persons are ordered 25 under this section shall supply the judge, prosecutor, defendant, and an agency 26 involved in the defendant's treatment with information and reports concerning the 27 defendant's past and present assessment, treatment, and progress. Information 28 compiled under this subsection is confidential and may only be used in connection 29 with court proceedings involving the defendant's treatment, including use by a court in 30 sentencing a person convicted under this section, or by an officer of the court in 31 preparing a presentence report for the use of the court in sentencing a person convicted

01 under this section. Monitoring of a defendant's progress under a diversion agreement 02 shall be the responsibility of the agency or organization that conducted the screening 03 interview. The agency or organization shall make a report to the court stating the 04 defendant's successful completion or failure to complete all or any part of the 05 treatment program specified by the screening interview. The form of the report shall 06 be determined by agreement between the court and the agency or organization 07 performing the screening interview. The court shall make the report of the agency or 08 organization performing the screening interview that is required by this subsection a 09 part of the record of the case. 10 Sec. 28.35.099. Definitions. In AS 28.35.029 - 28.35.099, 11 (1) "alcohol safety action program" means a program for alcohol and 12 substance abuse screening, referral, and monitoring developed and implemented or 13 approved by the Department of Health under AS 47.37; 14 (2) "controlled substance" has the meaning given in AS 28.33.190; 15 (3) "military" means the armed forces of the United States, the United 16 States Coast Guard, or the Alaska National Guard. 17 * Sec. 12. AS 43.23.140(b) is amended to read: 18 (b) An exemption is not available under this section for permanent fund 19 dividends taken to satisfy 20 (1) child support obligations required by court order or decision of the 21 child support services agency under AS 25.27.140 - 25.27.220; 22 (2) court ordered restitution under AS 12.55.045 - 12.55.051, 23 12.55.100, AS 28.35.043, or AS 47.12.120(b)(4); 24 (3) claims on defaulted education loans under AS 43.23.160; 25 (4) court ordered fines; 26 (5) writs of execution under AS 09.35 of a judgment that is entered 27 (A) against a minor in a civil action to recover damages and 28 court costs; 29 (B) under AS 09.65.255 against the parent, parents, or legal 30 guardian of an unemancipated minor; 31 (6) a debt owed by an eligible individual to an agency of the state,

01 including the University of Alaska, unless the debt is contested and an appeal is 02 pending, or the time limit for filing an appeal has not expired; 03 (7) a debt owed to a person for a program for the rehabilitation of 04 perpetrators of domestic violence required under AS 12.55.101, AS 18.66.100(c)(15), 05 AS 25.20.061(3), or AS 33.16.150(f)(2); 06 (8) a judgment for unpaid rent or damage owed to a landlord by an 07 eligible individual that was a tenant of the landlord; in this paragraph, "tenant" has the 08 meaning given in AS 34.03.360; 09 (9) court-ordered forfeiture of an appearance or performance bond 10 under AS 12.30.075. 11 * Sec. 13. AS 47.37.210(a) is amended to read: 12 (a) Except as required by AS 28.35.030(d) or 28.35.043(z), the registration 13 and other records of treatment facilities shall remain confidential and are privileged to 14 the patient. 15 * Sec. 14. AS 28.35.039 is repealed. 16 * Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to 17 read: 18 INDIRECT COURT RULE AMENDMENT. (a) AS 18.85.100(a), as amended by sec. 19 7 of this Act, has the effect of changing Rule 39, Alaska Rules of Criminal Procedure, by 20 authorizing court-appointed counsel to a defendant who is participating in the driving while 21 under the influence diversion program under AS 28.35.043, enacted by sec. 11 of this Act. 22 (b) AS 28.35.043(c), enacted by sec. 11 of this Act, has the effect of changing Rule 9, 23 Alaska Rules of Administration, by setting a filing fee amount for participation in the driving 24 while under the influence diversion program. 25 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 26 read: 27 TRANSITION: REGULATIONS. The Department of Administration may adopt 28 regulations necessary to implement the changes made by this Act. The regulations take effect 29 under AS 44.62 (Administrative Procedure Act), but not before the effective date of the law 30 implemented by the regulation. 31 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to

01 read: 02 CONDITIONAL EFFECT. (a) AS 18.85.100(a), as amended by sec. 7 of this Act, 03 takes effect only if sec. 15(a) of this Act receives the two-thirds majority vote of each house 04 required by art. IV, sec. 15, Constitution of the State of Alaska. 05 (b) AS 28.35.043(c), enacted by sec. 11 of this Act, takes effect only if sec. 15(b) of 06 this Act receives the two-thirds majority vote of each house required by art. IV, sec. 15, 07 Constitution of the State of Alaska. 08 * Sec. 18. Section 16 of this Act takes effect immediately under AS 01.10.070(c). 09 * Sec. 19. Except as provided in sec. 18 of this Act, this Act takes effect July 1, 2025.