Legislature(2007 - 2008)BELTZ 211
02/12/2008 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB201 | |
| SB257 | |
| HB101 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 185 | TELECONFERENCED | |
| += | SB 201 | TELECONFERENCED | |
| *+ | SB 257 | TELECONFERENCED | |
| += | HB 101 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 101-UNIFORM TRAFFIC LAWS
CHAIR MCGUIRE announced the consideration of HB 101. [Before the
committee was CSHB 101(CRA).]
9:15:10 AM
RICK VANDERKOLK, Staff to Representative Carl Gatto, said the
ignition interlock law was enacted in 2004 to prevent drunk
drivers from repeat offenses. The technology is getting
sophisticated. Rolling tests are done as the offender breathes
into the breathalyzer in order to continue driving.
Representative Gatto learned that one municipality had
difficulty enforcing the law. HB 101 was drafted to clear up
confusion for municipalities. The first provision in the current
version of the bill is that municipalities may not enact or
enforce an ordinance inconsistent with Alaska's Uniform Traffic
Law Act. The second provision clarifies sentencing procedures in
cases where interlocks are required.
9:17:24 AM
RODNEY DIAL, Lieutenant, Department of Public Safety, said his
department supports this bill. It will help ensure that the
ignition interlocks are used when appropriate and thus will keep
our roads safer.
SENATOR BUNDE spoke of a young fellow he was just speaking with
who had a checkered past and was trying to straighten his life
out. The man was strongly supportive of the interlock system
that will allow him to drive to work.
9:19:17 AM
MR. VANDERKOLK said there is letter from Mayor Mark Begich, "and
it's a response, after several attempts to get a response from
the municipality. They provided two suggestions and we've
incorporated those in the latest version." Version K was
provided to Anchorage in March of 2007 for further comments, and
he has not heard back. He assumes Anchorage is fine with it.
SENATOR FRENCH said the letter from the mayor referenced two
statutory fixes, but Senator French doesn't see them and would
like an explanation.
SENATOR BUNDE asked if state law is preeminent over city law.
SENATOR FRENCH said to the extent that there is a conflict.
9:21:46 AM
CHAIR MCGUIRE said the best example is in the closure of bars.
The state laws allow bars to close at 5 a.m., she noted, and so
there is always a little bit of conflict.
9:22:12 AM
GERALD LUCKHAUPT, Legislative Council, Division of Legal and
Research Services, said he tried to incorporate Mayor Begich's
recommendations in Section 2 with the court determination.
SENATOR FRENCH said the bill envisions that at sentencing the
judge will determine by a preponderance of the evidence whether
the person's chemical test was either 0.16 or 0.24 percent
alcohol, and then impose the interlock period accordingly. What
happens if the judge lets that go by and there is no finding?
Will the municipal prosecutors protest?
MR. LUCKHAUPT said the prosecutors and court must comply. If the
court fails to, the sentence will be illegal. Anchorage's
failure to comply with this law raises those questions, and the
Department of Law doesn't want to go in and start filing old
writs of mandamus or prohibition, which don't really exist
anymore. Something "in the nature of that" still does exist.
This became an easier way to address the issue of Anchorage
failing to comply with the state law. Under state law it has to
[comply]. It is reflected in the earlier letters, where Mr.
McConnaughy [Municipality of Anchorage] said he was aware of
this law but he didn't like it and he never presented it to the
Anchorage assembly. This is a way to address that.
9:26:00 AM
SENATOR FRENCH asked if there might still be a loophole for the
judge in the sentencing procedure. The double jeopardy clause
bars resentencing. There is no "shall" or command to a judge.
The defendant could say the judge didn't make the finding. The
court should be required to determine if the defendant was above
or below the stated alcohol levels.
9:27:05 AM
CHAIR MCGUIRE said she agrees.
MR. LUCKHAUPT said, "In our Title 28 sections we don't use 'the
court shall make various determinations.' We just say if this is
found, then this has to happen." It is assumed that the court
will do the right thing and obey the law. He said he could come
up with language saying "the court may not proceed with
sentencing until the court makes this determination." He hasn't
chosen to do it in Title 28. "I defaulted in the normal method …
assuming the court would comply."
CHAIR MCGUIRE said, "When you look at the letter from the
mayor's office, I recognize that putting the language that folks
recommend into statute doesn't always work." Page 1, under the
title, the language does say "shall, shall, shall." It is clear,
and the basis is the alcohol level. If it reaches that level,
the court shall impose the ignition interlock. Senator French is
saying that by adding "the court determining by a preponderance
of the evidence", which is fairly low, a person can wiggle out
of that "shall" part. Looking at municipality recommendations,
which is ironic because they are the people who are not
complying, they seem to give the "shall".
9:29:26 AM
MR. LUCKHAUPT said they have chosen to take out a portion of the
whole law and rewrite in a disjointed manner to express their
opinion. "What they have written is not something that will be
sufficient to adequately address that. So, it's going to be a
bit more complicated. I can't just … create that two sentences
and still address the entire issue in the whole range of things
that can occur." He said he rewrote it in a method that has been
done before in Title 28. "I can rewrite it as a mandatory … if
that is what the committee wants. I can rewrite it to put in
'shalls', but it won't look exactly like they've written that."
CHAIR MCGUIRE asked what it will look like. "Would it simply say
'at sentencing, the court shall'?"
MR. LUCKHAUPT said it will have to refer to whether a person is
convicted under (a) of this section and say "the court shall
make a determination". He said he can work with the two
alternatives for blood alcohol levels.
9:31:08 AM
CHAIR MCGUIRE said if Anchorage is not complying, "we want to be
as strong as we can in the language."
SENATOR FRENCH concurred. A little wordsmithing can make it nice
and tight.
SENATOR GREEN said it looks like it is backward. She asked what
the person is being accused of. Is the alcohol level the crime?
SENATOR FRENCH said the crime is being over 0.08 [blood alcohol
concentration (BAC)]. All DWI defendants who have been convicted
of being over 0.08 will come before the judge for sentencing.
The judge will then have to determine how high their BAC was.
This is for sentencing, not for making charges.
CHAIR MCGUIRE said some jurisdictions consider any impairment.
9:32:50 AM
MR. LUCKHAUPT said under Alaska law, an impaired driver can be
less than 0.08 [BAC].
SENATOR GREEN asked if someone can be impaired with no alcohol.
MR. LUCKHAUPT said people can be impaired due to other things.
9:33:46 AM
CHAIR MCGUIRE said she will set HB 101 aside so the changes can
be made.
| Document Name | Date/Time | Subjects |
|---|