Legislature(2003 - 2004)
05/05/2004 08:24 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 342-DRIVING UNDER INFLUENCE/ALCOHOL OFFENSES
MR. CODY RICE, staff to Representative Carl Gatto, co-sponsor of
HB 342, said this legislation addresses several issues related
to driving under the influence (DUI), limited licenses, and
look-back provisions. HB 342 sets up a situation where, based on
blood alcohol content (BAC), the most egregious offenders will
be required to have ignition interlocks for six months to one
year. It also contains provisions that allow a 15-year look-back
for misdemeanor DUI offenses. Currently, the law provides for a
lifetime look-back. Felony DUIs would have a 10-year window. HB
342 also contains provisions for the granting of limited
licenses and requires the offender to go through a series of
steps. He offered to answer questions.
SENATOR THERRIAULT asked for further explanation of the look-
back provisions.
MR. RICE explained that under current law, the felony look-back
provision requires that a third offense within eight years
qualifies as a felony. In 2006, the look-back time period will
increase to ten years. The misdemeanor look-back is unlimited.
This bill would limit that window to 15 years.
SENATOR FRENCH asked how the 15-year time limit was arrived at.
MR. RICE said that was a provision of HB 175, which was
Representative Rokeberg's bill.
MS. AMANDA WILSON, staff to Representative Rokeberg, explained
in looking at other states' provisions, 15 years is the longest
look-back provision, except in Massachusetts. The only other
state with a lifetime look-back provision is Massachusetts but
the consequences for subsequent offenses are less harsh than
Alaska's. Currently, Alaska has one of the harshest punishments
for subsequent offenses in the nation. She noted the intent is
not to go easy on subsequent offenders but to find some number
to make the law more just.
SENATOR THERRIAULT asked if an intoximeter works in extremely
cold temperatures.
MR. RICE said he believes Senator Therriault is questioning how
the ignition interlock works, and answered that ignition
interlocks have been used in Canada and Poland and have been
approved for use in Alaska since 1996. They have not been widely
used because they are not commercially viable, since people are
not required to use them. He noted that judges do not want to
impose their use because they are not easily available and
manufacturers do not want to market them here since they are not
widely used. This bill will solve that problem by requiring the
most egregious offenders to use them. He said his data suggests
that about 50 percent of the DUIs in Alaska are double the legal
limit. People in that range would be required to use an ignition
interlock for six months after the offense.
He informed members that he has talked to an ignition interlock
distributor who has expressed a willingness to make them
available in Alaska if this bill passes.
CHAIR SEEKINS asked about the reliability and effectiveness of
interlock devices.
MR. RICE said while researching that question, he learned that
what these companies are selling is their reputations because
their devices cannot be bypassed. Part of the reason they
require a minimum pool of ignition interlock users is that they
must do background checks on installers and make sure they are
well trained. He said they have been proven, according to
journal articles, to reduce recidivism. MADD is on record in
support. He explained that ignition interlocks are located near
the steering column. The driver must blow into the device before
the car will start. They are fairly complex to prevent someone
other than the driver to activate them. They also require
retests while the car is being driven and will log whether the
retest was performed. The cost is about $3 per day; the offender
would lease the device and pay for its installation.
SENATOR OGAN questioned how such a device could ensure that the
driver was activating it, not someone else.
MR. RICE said no device could assure that but the fact is that
it is highly unlikely that a sober passenger would activate the
device for a drunk driver, which is a crime in existing statute.
SENATOR OGAN commented that it appears the only way to get a
limited license under the bill is to have an interlock device
installed.
MR. RICE said a person could receive a limited license for a
first offense without an interlock device. The bill also
contains a separate provision from HB 175 that addresses the
wellness court program.
MS. WILSON explained that the wellness court program currently
has about 40 participants. That court only takes misdemeanants
and provides an intensive outpatient treatment program.
Participants must report to the court regularly and are required
to take naltrexone. Upon graduation after 18 months of
successful treatment, participants are provided a limited
license without an ignition interlock device. An offender who
does not participate is able to get a limited license within 90
days but must use an interlock device.
SENATOR FRENCH referred to lines 6-7 on page 1, and asked what
prompted that language.
MR. RICE said the legal drafter used that language to allow the
court to impose the use of an interlock device as part of the
sentence. Initially, ignition interlocks were only assigned as
part of probation requirements.
CHAIR SEEKINS furthered that the judge could require the
offender to use the device for a certain time period even if the
offender was not on probation.
MR. RICE agreed.
SENATOR FRENCH asked how that would be enforced.
MR. RICE said in all cases, the offender's license is revoked,
either judicially or administratively. To reinstate the license,
the offender would have to provide proof of certain actions to
DMV personnel. That might include showing a letter from an
interlock device company saying the device had been installed.
CHAIR SEEKINS asked Ms. Cashen to testify.
10:08 a.m.
MS. CINDY CASHEN, representing four MADD chapters in Alaska,
stated support for this legislation and the use of interlock
devices. According to the studies conducted in Maryland,
California, and Alberta, Canada, they have worked in other
states. The use of the devices resulted in a 50 to 90 percent
reduction of subsequent offenses compared to offenders who were
not required to use them. She said that MADD supports the
wellness court provision in the bill. The wellness court has
been successful. She commented, "We've seen that by helping
wellness court clients get back on the road quicker, they become
a contributor to our community as opposed to draining our
community of many things, among them resources."
MS. CASHEN said the amendment is of concern to MADD because [the
bill] as written, will make it easier for drunk drivers to get
their licenses back and continue to drink and drive. MADD
believes that the first and second time a person makes a mistake
a look-back of 15 years is appropriate but not for a third
offense. Studies show that a drunk driver drives between 200 and
2,000 times before being caught and, according to the National
Transportation Safety Board, it takes 10 years to catch an
offender the second time. She said the amendment is a reasonable
request. If a person is caught three or more times, the court
should be able to look-back in the records forever. She pointed
out that some of the people that want the amendment that
shortens the look-back provision to 15 years is a multiple DUI
offenders, one an 8-time offender. This bill will allow that
person to get his license back sooner. She cautioned that many
high-risk DUI offenders have been caught more than twice, so
this amendment is very dangerous. She asked members to consider
the MADD amendment.
SENATOR FRENCH asked Ms. Cashen if she was saying that 15 years
is an acceptable look-back time period for a first or second
offense, but a lifetime look-back period should apply to a third
offense.
MS. CASHEN said that is not MADD's official position. She
explained, "With MADD national and MADD chapters, we are able to
work within our states - we are given a certain amount of
freedom and this is one that we've come up with within the
state."
REPRESENTATIVE CARL GATTO, prime sponsor of HB 342, expressed a
concern that if the bill is amended, it will have to go back to
the House for concurrence and, due to time constraints, that
could prevent passage of the bill. He said the goal of the bill
is to prevent drunk drivers from driving. He said with that goal
in mind, he asked whether the amendment will further that goal.
He does not believe there is enough evidence to prove that
extending the look-back time period will be beneficial. He said
his intent is to provide motivation and encouragement for people
who "have been on the wrong side" and to give them an
opportunity to correct their actions. If indeed they are out of
the loop, they will drive drunk regardless of anything.
He said he believes 15 years is a good, long time and he
questioned whether records will exist in some instances for a
longer time period. He said this bill needs some restrictions.
He said he believes this bill is an excellent one that has wide
support and he does not want it to be jeopardized. He noted that
extending the look-back provision could be considered next year.
He repeated that his goal is to "get the drunks out of the cars"
and not to look-back to get anyone who has ever been guilty of
anything.
SENATOR FRENCH noted that he had a schedule conflict.
TAPE 04-64, SIDE A
CHAIR SEEKINS felt Representative Gatto's argument was
compelling even though he agrees with the intent of the
amendment. He expressed concern about the late date of the
session and said he would like to see the concept of the bill
embodied in law this year. He also pointed out that a very long
look-back period could encourage offenders to plead to other
offenses that would not go on their records as DUIs. He asked
the will of the committee.
SENATOR OGAN expressed support for Amendment 1, which reads as
follows, and moved to adopt it.
A M E N D M E N T 1
IN THE SENATE JUDICIARY COMMITTEE
TO CS HB 342(FIN)AM
Page 4, lines 4-7 Delete all material and insert:
"(e) In (d)(2) of this section, "previously
convicted" means having been convicted in this or
another jurisdiction within the 15 years preceding the
date of the present offense, of any of the following
offenses; however, convictions for any of these
offenses, if arising out of a single transaction and
single arrest, are considered one previous conviction:
(1) operating a motor vehicle, aircraft, or
watercraft in violation of AS 28.35.030 or in
violation of another law or ordinance with similar
elements, except that the other law or ordinance may
provide for a lower level of alcohol in the person's
blood or breath than imposed under AS 28.35.030;
(2) refusal to submit to a chemical test in
violation of AS 28.35.032 or in violation of another
law or ordinance with similar elements; or
(3) operating a commercial motor vehicle in
violation of AS 28.33.030 or in violation of another
law or ordinance with similar elements, except that
the other law or ordinance may provide for a lower
level of alcohol in the person's blood or breath than
imposed under AS 28.33.030."
Section 4 of the bill (page 4, lines 8-26): Delete all
material.
Add two new sections to the bill as shown on the
following two pages.
"*Sec.___. AS 28.35.030(b) is amended to read:
(b) Except as provided under (n) of this section,
driving while under the influence of an alcoholic
beverage, inhalant, or controlled substance is a class
A misdemeanor. Except as provided under (p) of this
section, upon conviction,
(1) the court shall impose a minimum
sentence of imprisonment of
(A) not less than 72 consecutive hours
and a fine of not less than $1,500 if the person has
not been previously convicted;
(B) not less than 20 days and a fine of
not less than $3,000 if the person has been previously
convicted once within the 15 years preceding the date
of the present offense;
(C) not less than 60 days and a fine of
not less than $4,000 if the person has been previously
convicted twice and is not subject to punishment under
(n) of this section;
(D) not less than 120 days and a fine
of not less than $5,000 if the person has been
previously convicted three times and is not subject to
punishment under (n) of this section;
(E) not less than 240 days and a fine
of not less than $6,000 if the person has been
previously convicted four times and is not subject to
punishment under (n) of this section;
(F) not less than 360 days and a fine
of not less than $7,000 if the person has been
previously convicted more than four times and is not
subject to punishment under (n) of this section;
(2) the court may not
(A) suspend execution of sentence or
grant probation except on condition that the person
serve the minimum imprisonment under (1) of this
subsection;
(B) suspend imposition of sentence;
(3) the court shall revoke the person's
driver's license, privilege to drive, or privilege to
obtain a license under AS 28.15.181, and may order
that the motor vehicle, aircraft, or watercraft that
was used in commission of the offense be forfeited
under AS 28.35.036; and
(4) the court may order that the person,
while incarcerated or as a condition of probation or
parole, take a drug or combination of drugs intended
to prevent the consumption of an alcoholic beverage; a
condition of probation or parole imposed under this
paragraph is in addition to any other condition
authorized under another provision of law."
"*Sec.___. AS 28.35.032(g) is amended to read:
(g) Except as provided under (r) of this section,
upon conviction,
(1) the court shall impose a minimum
sentence of imprisonment of
(A) not less than 72 consecutive hours
and a fine of not less than $1,500 if the person has
not been previously convicted;
(B) not less than 20 days and a fine of
not less than $3,000 if the person has been previously
convicted once within the 15 years preceding the date
of the present offense;
(C) not less than 50 days and a fine of
not less than $4,000 if the person has been previously
convicted twice and is not subject to punishment under
(r) of this section;
(D) not less than 120 days and a fine
of not less than $5,000 if the person has been
previously convicted three times and is not subject to
punishment under (r) of this section;
(E) not less than 240 days and a fine
of not less than $6,000 if the person has been
previously convicted four times and is not subject to
punishment under (r) of this section;
(F) not less than 360 days and a fine
of not less than $7,000 if the person has been
previously convicted more than four times and is not
subject to punishment under (r) of this section;
(2) the court may not
(A) suspend execution of sentence or
grant probation except on condition that the person
serve the minimum imprisonment under (1) of this
subsection;
(B) suspend imposition of sentence;
(3) the court shall revoke the person's
driver's license, privilege to drive, or privilege to
obtain a license under AS 28.15.181, and may order
that the motor vehicle, aircraft, or watercraft that
was used in commission of the offense be forfeited
under AS 28.35.036; and
(4) the court may order that the person,
while incarcerated or as a condition of probation or
parole, take a drug or combination of drugs intended
to prevent the consumption of an alcoholic beverage; a
condition of probation or parole imposed under this
paragraph is in addition to any other condition
authorized under another provision of law; and
(5) the sentence imposed by the court under
this subsection shall run consecutively with any other
sentence of imprisonment imposed on the person."
Renumber bill sections accordingly.
SENATOR THERRIAULT said he prefers that amendments be prepared
by the Legal and Research Services Division and did not know
whether he would support the amendment without knowing what the
final product would be.
SENATOR OGAN withdrew his motion to adopt Amendment 1.
MS. CASHEN informed members that the bill has a Senate Finance
Committee referral. She cautioned that the amended bill would
have to move out of that committee by Thursday for it to pass
the legislature. She noted that MADD wants to see this
legislation enacted.
CHAIR SEEKINS proposed that the Senate Judiciary Committee take
action on the bill today and that the sponsor and Ms. Cashen
speak with the drafter to make sure there are no problems with
the amendment and let the Senate Finance Committee address it.
SENATOR OGAN moved CSHB 342(FIN)am from committee with
individual recommendations.
CHAIR SEEKINS announced that without objection, the motion
carried. He then recessed the meeting at 10:25 a.m. and said his
intent was to reconvene after the Senate floor session.
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