Legislature(2015 - 2016)CAPITOL 106
03/15/2016 08:00 AM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB273 | |
| HB229 | |
| HB162 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 273 | TELECONFERENCED | |
| += | HB 229 | TELECONFERENCED | |
| += | HCR 15 | TELECONFERENCED | |
| *+ | HB 162 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 162-DMV REVOCATION OF DRIVER'S LICENSE
[Contains discussion of HB 205.]
8:57:19 AM
CHAIR LYNN announced that the final order of business would be
HOUSE BILL NO. 162 "An Act relating to administrative revocation
of a driver's license; and repealing Rule 603(a)(3), Alaska
Rules of Appellate Procedure."
8:57:32 AM
REPRESENTATIVE TAMMY WILSON, Alaska State Legislature, as prime
sponsor of HB 162, read the following sponsor statement
[original punctuation provided]:
When you make poor choices and decide to drive under
the influence you will face criminal prosecution. Upon
conviction by a jury of your peers you might face a
sentence of imprisonment, fines, and use of an
ignition interlock device after you regain the
privilege of a driver license. If you are found not
guilty of all charges, the court shall grant you
access to driving license privileges. However, the
state of Alaska possesses two separate bodies of
authority to determine the rights and privileges of
Alaskan drivers.
Under AS 28.15.165, Department of Motor Vehicles (DMV)
is authorized to conduct an administrative revocation
of a driver's license when a chemical test of a
person's breath shows an alcohol level of 0.08 or
more, or the person refuses to take the chemical test.
The administrative process by the DMV may occur
whether or not there is a criminal charge for a court
to process. If you wish to contest the administrative
revocation you can schedule an administrative
revocation hearing over the phone to review DMV's
action. The hearing for review of action by the DMV is
limited to the issue of whether the law enforcement
officer had probable cause to believe that the person
was operating a motor vehicle under the influence of
drugs or alcohol. The DMV hearing officer will conduct
the hearing, examine witnesses, review evidence, and
make a final ruling on the issue. Administrative
revocations by the DMV may be concurrent or in
addition to any penalties applied by the courts and is
at the discretion of the DMV hearing officer.
The state of Alaska possesses two separate bodies of
authority to determine the rights and privileges of
Alaskan drivers. The state of Alaska court system
provides for a trial by a jury of your peers which
will review the evidence and deliberate on criminal
sentencing. In comparison, the DMV's authority to
impose conditions on the issuance of a limited license
is designed to promptly address public safety and does
not necessarily involve the considerations of the
verdicts of the courts. In the end, anyone who
presents probable cause to a law enforcement officer
is considered guilty. Even if found not guilty by a
jury of your peers through the Alaska Court System,
the DMV has the authority to place additional burdens
on the individual. HB 162 solves this dual burden of
driver license revocations by repealing the DMVs
independent authority to administrative revocation of
a driver's license and place it solely within the
court.
9:00:35 AM
REPRESENTATIVE WILSON explained that the proposed legislation
does not seek to change the procedures related to driving under
the influence (DUI), but rather, to allow a person charged with
DUI and exonerated by the court system to have his or her
license returned and not receive any further penalties from the
DMV.
9:01:31 AM
CHAIR LYNN asked for clarification that someone arrested for
DUI, who is found not guilty of DUI by the court, could still
have his/her license revoked by the DMV. He asked also if that
situation constitutes double jeopardy.
REPRESENTATIVE WILSON agreed that there is an administrative
review by the DMV in addition to the court proceeding; however,
she added that it is not double jeopardy because it is
considered to be similar to a civil case, as opposed to a
criminal case subject to court procedures.
REPRESENTATIVE STUTES expressed her support for HB 162.
9:03:19 AM
REPRESENTATIVE VAZQUEZ expressed that she also supports HB 162.
She asked for clarification that through the proposed
legislation there would have to be a judicial process before the
DMV could revoke a driver's license.
REPRESENTATIVE WILSON responded that someone who is stopped for
DUI by a law enforcement officer and given a ticket must then go
to court; however, as she explained further, even if the
individual is found not guilty by the court, he or she is still
subject to the findings and penalty of a DMV administrative
review.
REPRESENTATIVE VAZQUEZ asked if the proposed legislation would
affect federal funding.
REPRESENTATIVE WILSON responded that she was unable to find any
evidence that HB 162 would result in loss of federal funding.
She questioned why there was a zero fiscal note attached as she
speculated that the proposed legislation would eliminate the
need for the two administrative hearing officers within the DMV.
9:05:27 AM
REPRESENTATIVE WILSON responded to Chair Lynn's request for
clarification on the issue of federal funding by saying that the
federal government has, at times, linked federal funding with
certain legislation, such as seat belt laws; however, she
reiterated that she has found no evidence that the proposed
legislation would affect any federal funding. She also
emphasized that HB 162 does not change laws or consequences
regarding DUI, but maintained that the DMV is not the proper
place for adjudication.
9:06:24 AM
REPRESENTATIVE KELLER stated his support for HB 162 and
maintained his belief that in Alaska the administrative and
judicial branches are stronger than the legislative branch, in
part because the governor appoints the commissioner of the
Department of Law (DOL). He opined that "anything we can do to
separate justice from the enforcement and the legislative
process ... cleans up our act."
9:07:14 AM
NICOLE THAM, Driver Services Manager, Division of Motor Vehicles
(DMV), Department of Administration (DOA), stated her concern
that the committee and the public understand that it is not the
DMV's duty to administratively revoke driver's licenses but that
the Thirteenth Alaska State Legislature - to deal with the
problem of drunk driving and increase safety on Alaska's
roadways - adopted administrative license revocation. She added
that one of the primary purposes of administrative license
revocation was to impose swift licensing sanctions on impaired
drivers to deter drunk driving.
9:08:13 AM
CHAIR LYNN asked Ms. Tham to explain why there would be an
administrative revocation in the case where the court found a
person not guilty of a DUI.
MS. THAM responded that there were two separate proceedings:
the court proceeding to punish the criminal action and the civil
proceeding - administrative revocation - to remove the drunk
driver from the roadway.
CHAIR LYNN asked for further explanation as to the basis for the
DMV acting as a "second" court hearing when there has been a
criminal proceeding that determined the driver was not impaired.
MS. THAM explained that even if the action is dismissed in
court, the two main issues - probable cause for arrest
("probable cause") and the validity of the breathalyzer test -
are the only two issues that the DMV considers in its hearing.
CHAIR LYNN contended that a stop for probable cause is a
judgment call by an officer that the driver is impaired, but a
subsequent court finding that the driver was not impaired
suggests two different court proceedings.
MS. THAM explained the process as follows: An officer will stop
a driver if there is probable cause and administer a
breathalyzer test. If the breathalyzer test result shows an
alcohol concentration of .08 or greater, indicating that the
driver is actually impaired, or if the driver refuses the
breathalyzer test, the administrative proceeding is initiated.
The driver is then served a notice and order of revocation which
explains the process, why their driving privileges are being
revoked, and serves as a seven-day temporary license. The
driver has seven days to request an administrative hearing for
review of the action against his/her driving privileges, and, if
a hearing is not requested, the action is put on the record.
She concluded by stating that often the separate court
proceeding does not occur until months later.
9:11:32 AM
REPRESENTATIVE STUTES reiterated her belief that the DMV's
second-guessing the court's determination appears comparable to
a double jeopardy and creates more hardship for the individual
who has already had to go through the court process.
9:12:24 AM
REPRESENTATIVE KELLER asked if, in Ms. Tham's opinion, the court
system of Alaska is incapable of swift sanctions.
MS. THAM responded that the court proceeding is completely
independent of the DMV, and that the DMV is required by
statutory provision to take action against a driver for a
breathalyzer test result of .08 or greater who received a notice
and order of revocation. She added that Alaska is in line with
43 other states, the District of Columbia, and the two
territories of the Northern Mariana Islands and the Virgin
Islands, in adopting licensing sanctions to deter drunk driving
and remove impaired drivers swiftly from the road. The
administrative revocation of the DMV often precedes the court
action, because the DMV action is taken within seven days of the
notice and order being served unless the action is stayed
because the driver requested an administrative hearing. In most
cases the DMV action precedes court action.
9:13:55 AM
REPRESENTATIVE KELLER asked why there is a zero fiscal note
attached to HB 162.
MS. THAM explained that the DMV does other hearings for motor
vehicle and driver's license issues, and although the bulk of
the hearings involve administrative revocation of driving
privileges, there are hearings related to title disputes,
personalized plate disputes, and medical cancellation.
REPRESENTATIVE KELLER reiterated his belief that the proposed
legislation should have a positive fiscal note due to the stated
reduction in duties.
MS. THAM responded that the full fiscal implication of HB 162 is
unclear at this time.
9:15:10 AM
MS. THAM, in response to Representative Vazquez's question about
when the notice of revocation is issued, relayed that it is
issued at the time of arrest.
REPRESENTATIVE VAZQUEZ asked what the wait time was for an
administrative hearing, if requested.
MS. THAM replied that the hearing requests are processed as soon
as they are received, and hearings are scheduled about 30-45
days beyond that point. She added that once the hearing is
granted the action is stayed and is not applied to the driver's
record until an affirmed decision at the hearing. If dismissed,
the action is not added to the record.
REPRESENTATIVE VAZQUEZ asked if there is notice of the right to
appeal the decision in court once the administrative decision is
issued.
MS. THAM responded yes and added that the decision may be
appealed through the superior court within 30 days of the
decision of the hearing.
9:17:14 AM
REPRESENTATIVE VAZQUEZ requested Ms. Tham explain the instances
in which the DMV does not adhere to a court decision but
proceeds to revoke the license of an individual even though
he/she was found not guilty by a court.
MS. THAM explained that since the administrative action usually
precedes the court action, the administrative action is not
dependent at all on the court action. She added that the
criteria for the DMV action has a lower threshold than that of
the court system - the DMV criteria being probable cause and the
results of the breathalyzer test.
REPRESENTATIVE VAZQUEZ asked for confirmation that the DMV has a
separate basis for taking action against someone's license from
that of the court system.
MS. THAM confirmed that under AS 28.15.165 that statement was
correct.
REPRESENTATIVE VAZQUEZ asked if the DMV action occurred
regardless of the court's decision.
MS. THAM answered in the affirmative.
9:18:35 AM
REPRESENTATIVE KREISS-TOMKINS asked how many full-time hearing
officers are tasked with the administrative hearings described.
MS. THAM responded that there are two full-time hearing officers
who review DMV hearings of all types, and there are six
administrative licensing staff who perform some aspect of the
administrative revocation process.
REPRESENTATIVE KREISS-TOMKINS asked what portion of staff time
is spent on license revocations.
MS. THAM expressed that it would be difficult to estimate the
amount of time, and she said she would provide the committee
with that information.
9:20:21 AM
REPRESENTATIVE VAZQUEZ asked how many times the DMV suspended
someone's license when the court determined him/her not guilty
of DUI.
MS. THAM stated that the DMV has data on the number of
administrative revocations and administrative hearings, but no
data on criminal conviction, as that would be with the court.
REPRESENTATIVE KREISS-TOMKINS asked Ms. Tham to cite the number
of administrative revocations per year and the average number of
revoked licenses in Alaska at any given time.
9:22:17 AM
REPRESENTATIVE VAZQUEZ expressed that although she sees the
merit of swift action by the DMV, she doesn't understand how
anyone who has his/her license revoked by the DMV after a
judicial action exonerates him/her is being afforded due
process. She added that she did recognize the merit of an
administrative process that is more responsive than the longer
and more cumbersome criminal process.
REPRESENTATIVE WILSON asked rhetorically, "Aren't you innocent
until proven guilty?" She further attested that a DMV action
that precedes a court decision counters that principle.
9:24:59 AM
REPRESENTATIVE VAZQUEZ voiced her opinion that the matter under
discussion was one of balance. She declared that public safety
is an important consideration - that is, the issue of drivers
suspected of DUI being allowed on the roadways. She also
conceded that having one's driving privileges revoked is a
serious impediment in Alaska. She opined that a long
administrative process is problematic but that the judicial
system would move even slower. She expressed a desire to hear
testimony from the court system.
CHAIR LYNN suggested the possibility of these issues being
addressed in the House Judiciary Standing Committee, which is
the next committee of referral for HB 162.
9:27:04 AM
REPRESENTATIVE KREISS-TOMKINS requested the number of license
revocations annually in Alaska.
MS. THAM answered that in 2008 there were 5,902 administrative
revocations for DUI, and in 2014 there were 3,563, a 40 percent
reduction. She asked the committee members to consider the
decrease in DUIs in light of all the deterrents to drunk
driving, either singularly or in combination, namely sanctions,
convictions, administrative revocations, and all the other
requirements. She stressed that only 25-29 percent of people
who get an administrative revocation request a review.
REPRESENTATIVE KREISS-TOMKINS asked if administrative
revocations exist in other states.
MS. THAM repeated her claim from earlier that administrative
revocations exist in 43 other states, the District of Columbia,
and the two territories of the Northern Mariana Islands and the
Virgin Islands.
9:29:01 AM
REPRESENTATIVE KREISS-TOMKINS asked Ms. Tham and the sponsor if
either knew how HB 162 differs from or relates similarly to the
criminal justice reform bill [HB 205, Criminal Law/Procedure;
Driv Lic; Pub Aid] heard in the House Judiciary Standing
Committee the previous day, and he mentioned specifically the
provisions in HB 205 that relate to the revocation of driver's
licenses.
REPRESENTATIVE WILSON said that she spoke with Senator Coghill's
legislative aide, who asserted that the content of HB 162 was
not included in HB 205 and there was no conflict between the two
proposed legislations.
MS. THAM mentioned that she was aware of discussions about
proposed legislation addressing the issue of limited licenses.
She also noted discussions concerning the review of criminal
laws and practices within AS 28, which includes the dual system
of administrative and judicial license revocation.
9:31:09 AM
REPRESENTATIVE STUTES opined that she understands that having a
driver's license is a privilege. She expressed her concern that
the DMV is overstepping the bounds of its expertise. She went
on to give the example of a homeless man living in a non-
operational truck who received a DUI for drinking in his truck.
She said that the court dismissed the DUI, but the DMV required
the individual get a full mental evaluation before returning his
driver license to him.
9:32:50 AM
REPRESENTATIVE VAZQUEZ declared that her greatest concern is the
situation in which the court has ruled and the DMV overturns the
decision. She opined that she also understands the validity of
the DMV removing an impaired driver from the street with swift
action. She stated further that the courts are bogged down and
cannot swiftly take action as can the DMV. She maintained that
the issue is "when the court takes action and finds someone not
guilty for whatever reason, that DMV not be able to usurp that
judicial decision." She repeated her belief that there is
validity to having an administrative process that is more
flexible and faster than the judicial system.
9:35:23 AM
REPRESENTATIVE KELLER asked Representative Vazquez if she would
be comfortable relying on the three House State Affairs Standing
Committee members, who also serve on the House Judiciary
Standing Committee, to bring her issues up in the House
Judiciary Standing Committee hearing. He restated her issue as
the balance between the considerations for public safety against
administrative authority for license revocation. He expressed
that the desire for the court system to handle license
revocation was not at all a reflection on the administrative
review system but said that he thought it was an unnecessary
duplication.
REPRESENTATIVE VAZQUEZ suggested a possible amendment to tighten
the timeframe for the administrative license revocation review
process.
9:37:39 AM
REPRESENTATIVE WILSON responded that she understood
Representative Vazquez's concern but asserted that the court's
timeframe is governed by that process and the DMV's timeframe
precedes that of the court. She offered to work with committee
members to consider amendments to alleviate their concerns. She
reiterated her belief that the court system process should be
the only process and it should precede license revocation.
REPRESENTATIVE STUTES agreed with Representative Wilson's
assessment of the current license revocation procedures and
said, "You don't punish somebody for something before you know
they've done it." She reiterated that she supported the bill.
9:40:39 AM
REPRESENTATIVE KREISS-TOMKINS asked Nancy Meade if she knew the
usual wait times and process times for someone charged with a
DUI [in the court system].
9:41:47 AM
NANCY MEADE, General Council, Administrative Staff, Office of
the Administrative Director, Alaska Court System, responded to
the question posed by Representative Kreiss-Tomkins by stating
that the average time for disposition of misdemeanor DUIs - that
is, first and second DUIs - is four months, and the average time
for a felony DUI is nine months. She stated that there was
great variation among the times. She also reiterated Ms. Tham's
assertion that the number of DUIs has decreased and the number
of DUIs in 2015 was 3,650.
9:42:59 AM
REPRESENTATIVE SPOHNHOLZ asked how many of the 3,650 convictions
were felony.
MS. MEADE responded that in 2015 there were 223 convictions for
felony DUI and 3,371 convictions for misdemeanor DUI. She
explained that these numbers referred to convictions and not
charges. She added that there is a low acquittal rate for DUI
charges.
9:43:51 AM
REPRESENTATIVE VAZQUEZ asked for the acquittal rate for the
misdemeanor cases.
MS. MEADE replied that she didn't know but could provide that
information to the committee along with the dismissal rate.
9:44:20 AM
MS. MEADE repeated the number of DUIs for Representative
Spohnholz, which is about 3600. She added one point of
clarification regarding HB 205. She said that although HB 205
does not have a provision similar to HB 162, it does have
several provisions about giving limited licenses back to people
who have had a DUI. She directed the committee's attention to
Section 83 of HB 205, which says that if a court acquits someone
of a DUI and their license had been revoked administratively,
the court decision would stop that administrative revocation at
that point in time. She added that almost always the
administrative revocation takes place before the court
disposition of the case.
REPRESENTATIVE SPOHNHOLZ asked the sponsor if the proposed
legislation would treat felony and misdemeanor DUIs differently.
REPRESENTATIVE WILSON answered that they would be treated alike
in the proposed legislation - the intent being to put
jurisdiction back into the court system.
REPRESENTATIVE VAZQUEZ asked for acquittal rates for the
different categories of DUI.
MS. MEADE agreed to provide that information to the committee.
9:46:43 AM
REPRESENTATIVE TALERICO asked Representative Wilson for the
current procedures when someone is stopped by an officer and
refuses a breathalyzer test.
REPRESENTATIVE VAZQUEZ alleged that no one with that expertise
is present who can answer Representative Talerico's question.
REPRESENTATIVE WILSON responded that a person suspected of a DUI
does not walk away. She contended that someone suspected of a
DUI is given notice of the DMV procedures and timeline before
any judicial proceeding. She stated her belief that this
scenario constitutes a presumption of guilt before a person has
been to court and received due process.
9:49:28 AM
REPRESENTATIVE VAZQUEZ voiced her assumption that the acquittal
rate is about 5-10 percent. She offered that someone arrested
for serial assault or serial murder would have to wait for
judicial action. She also noted that an employee accused of
serious misconduct is suspended immediately. She suggested that
the balance for public safety and interest is a consideration
for immediate action in those cases.
REPRESENTATIVE WILSON reiterated that a person should be
innocent until proven guilty. She claimed that she knows of no
other scenario where you must go through an administrative
hearing and be punished before a court proceeding. She cited
the example of a shoplifter.
9:51:59 AM
REPRESENTATIVE VAZQUEZ countered that in the case of suspected
shoplifting and certainly more serious accusations there may be
a number of pre-trial conditions set by court before the
judicial process, including bail, loss of freedom of movement, a
court-appointed custodian, travel restrictions, and
imprisonment, all to safeguard the public interests.
REPRESENTATIVE WILSON maintained that the court determined those
conditions, not the DMV.
9:54:08 AM
REPRESENTATIVE KELLER asked if the court could restrict driving
as a pretrial condition in a simple but swift process.
REPRESENTATIVE VAZQUEZ expressed concern for the added burden to
the court to be tasked in that way but acknowledged the
possibility of the court restricting driving as a pretrial
condition.
CHAIR LYNN asked Representative Vazquez to work with the sponsor
to address her concerns before HB 162 was heard in the House
Judiciary Standing Committee, if it moved out of the current
committee.
REPRESENTATIVE SPOHNHOLZ asked if HB 162 would increase the
workload of the court system.
REPRESENTATIVE WILSON responded that HB 162 would not increase
the workload for the court system and relayed that the court
system offered no fiscal note for the proposed legislation.
CHAIR LYNN closed public testimony on HB 162.
9:56:28AM
REPRESENTATIVE KREISS-TOMKINS stated his belief that there is
room for improvement in the degree of diligence with regard to
the fiscal note.
9:57:14 AM
REPRESENTATIVE KELLER moved to report HB 162 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 162 was reported out of the
House State Affairs Standing Committee.