Legislature(1999 - 2000)
05/15/1999 12:27 PM Senate JUD
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HB 151-REVOCATION OF MINOR DRIVER'S LICENSE
CHAIRMAN TAYLOR informed committee members a new committee
substitute (Version Q, 5/15/99) was prepared.
PAT HARMON, legislative aide to Representative Pete Kott, informed
committee members that Representative Kott is in agreement with the
contents of the new committee substitute.
TOM FINDLEY, a Juneau attorney, informed committee members he has
been working on this legislation because he is interested in the
subject. He explained that minor consuming penalties were
increased in Section 1. Under current law the offense is an
infraction; under this bill the third offense is a misdemeanor. He
suggested the following changes. The first offense should not
result in a license suspension; currently the suspension time is 10
days, DMV would like to see that increased to 30 days. Section 3,
which criminalizes alcohol consumption, should also criminalize
drug use. Alcohol consumption or drug use, while driving, will be
a class B misdemeanor and the minor's license will be suspended for
180 days for a first offense and one year for a second offense.
CHAIRMAN TAYLOR clarified the penalty for that offense was already
increased to emphasize a zero tolerance policy for drivers under
the age of 21.
MR. FINDLEY added that a minor who has been caught for a third time
probably has a serious drinking problem and should have to appear
in court. He noted some minors have been arrested as many as 18
times, but the violations are turned over to DMV so they never
appear in court.
Number 215
JUANITA HENSLEY, Division of Motor Vehicles (DMV), Department of
Administration, stated that a 10 day revocation is not enough to
get anyone's attention. DMV prefers a 30 day revocation because no
revocation time for a first offense is not going to get the minor's
attention and result in change.
SENATOR DONLEY suggested using revocation periods of 30 days for a
first offense, 60 days for a second offense, and 90 days for a
third offense, which is already in the bill.
CHAIRMAN TAYLOR asked if there was any objection to adopting
version Q as the Senate Judiciary committee substitute. There
being no objection, the motion carried.
CHAIRMAN TAYLOR moved to increase the revocation time from 10 to 30
days, on page 3, line 29, and from 30 to 60 days on page 3, line 30
(Amendment 1). There being no objection, the motion carried.
Number 249
ANNE CARPENETI, Department of Law, stated she believes the Senate
Judiciary Committee version contains good compromises. She pointed
out that increasing a third time offense to a misdemeanor creates
fiscal implications. MS. CARPENETI suggested amending AS 28.15.185
because last year the court held that an offense must have a
significant enough penalty to require a jury trial and court-
appointed counsel. As a result, AS 28.15.185 was amended and minor
consuming offenses were removed. That statute will need to be
amended again to include the misdemeanor offenses in HB 151.
CHAIRMAN TAYLOR asked if a new section would have to be added.
MS. CARPENETI said she believes so.
SENATOR DONLEY moved a conceptual amendment (Amendment 2) to
incorporate a new section to do what Ms. Carpeneti recommended.
SENATOR HALFORD said he has no objection to that motion, however he
would like to know how the administrative and court revocations are
related, and whether the same violation can cause an action at both
levels.
MS. CARPENETI said the offenses are generally concurrent with each
other.
CHAIRMAN TAYLOR agreed they must be concurrent as far as the effect
of the sentence. He clarified that the only difference is that the
bill contains a provision, that the Administration opposes, that
provides if a person is dismissed or found not guilty from the
criminal suit, the dismissal acts to also remove the administrative
revocation that was imposed so that one does not have to go to
court twice.
SENATOR HALFORD questioned whether different standards of proof
apply to an administrative proceeding versus a court proceeding.
CHAIRMAN TAYLOR said yes, the standard of proof for an
administrative hearing is a preponderance of evidence, and for the
court hearing it is guilty beyond a reasonable doubt. He explained
that this provision will prevent a person who is found not guilty
beyond a reasonable doubt from having his/her license revoked under
the civil aspects which come out of the administrative system.
Number 291
MS. CARPENETI added the Department of Law is also concerned with
the provision in paragraph 2 on page 5 because it wants to keep the
administrative and court revocations as separate as possible. The
Department of Law believes its position in litigating
constitutionality of the "use it-lose it" law is that it is a
remedial aspect, not a punitive one.
CHAIRMAN TAYLOR asked if there was any objection to adopting
Amendment 2. There being no objection, the motion carried.
MR. FINDLEY suggested amending AS 28.35.280 to add controlled
substances to cover driving under the influence of drugs. He
clarified that Section 8 on page 5 would need to be amended.
SENATOR HALFORD asked if there is a term of art that excludes
prescription drugs from controlled substances.
SENATOR DONLEY moved to adopt a conceptual amendment (Amendment 3)
to add a violation for driving while under the influence of a
controlled substance into the appropriate section of the bill.
SENATOR HALFORD objected and asked for an answer to his question
about the definition of controlled substances.
SENATOR DONLEY asked if prescription drugs fall under the
definition of controlled drugs.
SENATOR HALFORD explained the general term, "controlled drugs"
includes prescription drugs.
MS. CARPENETI informed committee members AS 28.35.280(a) would need
to be amended to exclude prescription drugs.
SENATOR HALFORD said he agrees with the amendment but wants to make
sure that it refers to contraband drugs only, not prescription
drugs.
CHAIRMAN TAYLOR asked Ms. Carpeneti to work with the legal drafter
to make sure that intent is accomplished. MS. CARPENETI agreed to
do so. There being no objection to Amendment 3, it was adopted.
Number 349
MR. JOHN HYDE made the following comments via teleconference from
his home in Soldotna. He informed committee members he does not
have a copy of version Q. His primary concern is that the
administrative hearings will be used for the first two offenses.
Administrative hearings under AS 28.15.183 are not evidentiary
hearings and rightly so. The hearing officers at DMV are not
qualified to hold evidentiary hearings. Due to increasing pressure
from the public, and legislative activities, DMV has expanded its
role and has created a situation in which its hearings are becoming
evidentiary and it hears evidence arbitrarily. The arbitrary and
capricious application of the law is unconstitutional.
MR. HYDE gave an example of how evidence, obtained in an illegal
entry, was used in a case and was the basis for a ruling in an
administrative hearing. He believes DMV is vigorously trying to
preserve its position in this law, and it is trying to strenuously
convict young people of violating a law when it is violating the
law it is trying to preserve.
CHAIRMAN TAYLOR told Mr. Hyde that is why the bill takes the
violations out of the administrative process after the first two
offenses and places the violator before a judge who understands the
term, "capricious and arbitrary."
MR. HYDE commended the committee on its efforts but said he would
prefer that the all offenses get court hearings rather than
administrative hearings.
ROBERT BUTTCANE, Department of Health and Social Services (DHSS),
commented on two issues. If minor consuming and minor possession
of alcohol are recriminalized through HB 151, it would be
appropriate to support the court in providing it with some type of
an assessment process. He asked the committee to fund the Kiddie
ASAP program enacted by the Legislature last year. Approximately
$100,000 for administrative costs and $400,000 for community grant
programs would be an adequate amount to take care of this
population. His second point was that an estimated 1,000 young
people will be subject to a misdemeanor offense and jail time if HB
151 passes. Those youth will be placed in youth facilities which
are already full. DHSS might have to request a supplemental
appropriation to pay for overtime for detention staff if the court
takes an aggressive stance toward jail time.
CHAIRMAN TAYLOR said both issues are unrelated to this bill because
an appropriation cannot be attached to it, but the Senate Judiciary
Committee supported the Kiddie ASAP concept last year, so if DHSS
needs a supplemental as a result of the court system's actions, he
will argue in favor of it.
SENATOR HALFORD moved SCSHB 151(JUD) as amended from committee with
individual recommendations. Without objection, the bill moved from
committee.
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