Legislature(2003 - 2004)
04/02/2003 01:32 PM 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
SB 59-PERMANENT FUND INELIGIBILITY FOR DUI
SENATOR SCOTT OGAN made a motion to adopt committee substitute
(CS) version \H SB 59 for discussion.
SENATOR JOHNNY ELLIS objected for the purpose of an explanation
of the changes prior to adoption.
CRYSTAL MOORE said, "The changes are the same changes as the
last one as far as removing the subsection (B) and putting it
into (i) as well as including municipal..."
CHAIR SEEKINS asked for confirmation that a person convicted of
a DUI in a municipality would become ineligible for the PFD.
MS. MOORE said that is correct.
SENATOR ELLIS removed his objection.
SENATOR GENE THERRIAULT referred to page 3, line 21 and asked
whether the law would apply retroactively from the effective
date.
SENATOR JOHN COWDERY, bill sponsor, replied it was his intent
that prior convictions would not apply. He asked Tamara Cook to
clarify.
TAMARA COOK, Legislative Legal and Research Services Director,
explained that eventually a five-year period would apply. This
would include the qualifying year, and four years prior to that.
If there is a conviction during any of those five years then the
person will be disqualified from receiving a PFD.
Under Section 4, a special applicability section says that
convictions committed before January 1, 2004 cannot be
considered for purposes of determining prior convictions for
purposes of this section. That language is the last sentence on
page 3, lines 28-30. There is no retroactivity as of the date
the bill is adopted.
SENATOR THERRIAULT asked if a person convicted for one DUI will
lose just one check.
MS. COOK replied,
You'll lose the check for that year if you have a
conviction during any of the period that is expressed.
As a matter of fact, if you have a violation in year
four then there would be a number of years before it
moves down past the four-year prior. So in fact you
would lose up to five years of PFDs.
SENATOR THERRIAULT asked if that is for one conviction.
MS. COOK said it is.
1:49 pm
MS. COOK explained,
Those sections, which are in paragraph 3, deal with a
single conviction, but in the case of individuals who
have had a prior - if they were sentenced during the
qualifying year or the four years immediately before
the qualifying year as a result of a conviction in-
state of the DUI. And then if you look on line 15 you
will see, 'and if the individual has been convicted of
a prior' so they have to have had one prior as well to
fall under paragraph 3.
SENATOR COWDERY asked if a DUI from last year would have any
affect on a person who was also convicted of a DUI the following
year.
MS. COOK said that would count as a prior. The law looks at the
year in which a conviction occurs and then it looks back to see
if there are any priors within a five year period.
SENATOR COWDERY asked if the dividend would be lost for that
year and another four years, which was his intent.
MS. COOK said yes; including the qualifying year would take the
total to five years.
SENATOR THERRIAULT asked for verification that for a first
conviction a person will lose one check while a second
conviction within a four-year period will result in five lost
checks.
MS. COOK agreed because a first offender falls under page 1,
paragraph (d) and the new subsection (B). [Subsection (d) and
subparagraph (B)] It says you don't qualify for a PFD if during
the qualifying year you're convicted of this crime. If you are
convicted of either DUI or refusal to submit to a chemical test
[under AS 28.35.030] you cannot qualify for a PFD.
The new paragraph (3) means a person doesn't qualify for a PFD
if during the qualifying year and the four years immediately
prior to the qualifying year they are sentenced as a result of
conviction of DUI and they have a prior DUI conviction.
SENATOR FRENCH asked for further explanation with regard to
whether the money would be diverted back to the dividend fund or
used to pay crime victims. He wasn't clear where version \H gave
direction to shift the money to one account or the other.
MS. COOK acknowledged the question is confusing because it's a
technical fix and it's not readily apparent on the face of the
bill.
Under existing law, people that have been convicted of felonies
and misdemeanors with priors are not eligible for PFDs. Part of
the public notice statute, AS 43.23.028, considers the amount
that would have been paid to individuals who were ineligible
under (d) to receive a PFD. To the extent that the Legislature
appropriates that amount, it doesn't need to be included in the
notice requirement.
SENATOR FRENCH asked which statute was the notice requirement.
MS. COOK explained it's AS 43.23.028.
It says that everything that is subtracted from the PFD
must be listed, with the exception of money that would have
belonged to other people. The reasoning is that money would
never have gone into the PFD check anyway. To get out from
under that notice requirement, the person must be
ineligible under AS 43.20.005 (d). The original versions of
the bills amended that section of statute to include the
additional crimes and to the ineligibility provision. When
it was decided that we did not want to treat money in that
fashion, ... I took the provisions that were in (d) out of
(d) and I put them in bill Section 2. ... Page 1 \H SB 59.
I created a new subsection (i) so that these are no longer
(d) ineligibilities; they are (i) ineligibilities. As a
result, the cross reference that applies to the other types
of people just doesn't apply to these folks anymore.
SENATOR FRENCH asked if removing AS 43.23.005 (i) would make
this money available to crime victims as it has been in the
past.
MS. COOK replied the solution for that would be to return to the
original version of the bill.
SENATOR FRENCH verified that would be \A version.
MS. COOK agreed; it's the same as taking the material in (i) and
placing it back in (d).
She pointed out there are additional changes to the original
bill that you might not want to lose. For example, the CS
addresses the ordinance and the original bill doesn't.
SENATOR FRENCH noted that would make an individual ineligible if
they had a municipal DUI.
MS. COOK agreed.
SENATOR THERRIAULT asked the sponsor if it was his intent that
the funds would not go into the victim's compensation fund so
that the court couldn't count that money toward the violator's
fine.
SENATOR COWDERY said,
The reason I wanted to make them ineligible, not keep
them eligible and the money to go - there's probably a
long list of people that want the money - and the
people that are getting the money now won't be
affected unless the person they're getting it from
gets another DUI.
MS. COOK wasn't sure she understood the thrust of the Senator's
statement, but currently, money available under subsection (d)
is available to the Legislature to appropriate among four or
five different purposes that have been set out in statute. It
has nothing to do with an individual's own PFD and whether or
not it is subject to attachment.
2:00 pm
CHAIR SEEKINS recapped. If a person is not eligible, it stays in
the corpus of the money brought to the Legislature from the
permanent fund and how it is appropriated is up to the
Legislature.
MS. COOK said it essentially stays as part of the dividend fund,
not the permanent fund, and is distributed according to the
formula for all eligible people unless the Legislature elects to
appropriate it for some other purpose.
CHAIR SEEKINS interjected, "We could add it to the hold harmless
funds..."
MS. COOK said the Legislature could do that with any money in
the dividend fund, but the appropriation would appear in the
notice.
SENATOR OGAN asked if it was correct that anyone else with an
attachment would be out of luck.
MS. COOK said yes; a person that doesn't have a permanent fund
dividend doesn't have one to attach.
SENATOR FRENCH asked if this bill would make all DUI offenders'
PFD checks that were forfeited under a previous provision of law
unavailable for distribution to crime victim funds.
MS. COOK said,
They will not be available to be distributed in any
fashion except as the Legislature chooses to
appropriate them. If the Legislature chooses to
appropriate the money, that fact will appear as part
of the notice on the recipient's PFD check stub. That
money is just like any other money in the dividend
fund and the Legislature can appropriate the money for
any public purpose. If it does so, there is an
automatic notice that, by law, the permanent fund
division provides to the dividend recipients.
SENATOR FRENCH asked if PFD funds that felons are ineligible to
receive are appropriated separately to the domestic violence and
sexual assault programs.
CHAIR SEEKINS said, "It's just automatically deposited over
there."
SENATOR THERRIAULT clarified the money shows up as a fund source
for those programs.
SENATOR FRENCH asked if this bill would change that.
MS. COOK replied SB 59 would change the fact that, if the
Legislature elects to take money out of the dividend fund, there
will be a notice that appears on individual's checks. In that
sense, it will be a harder decision for the Legislature to make.
SENATOR FRENCH asked if the dividend checks didn't already show
all the deductions.
MS. COOK said it does show that.
To the extent that the monies go to the authorized
uses that are contained in this bill that can be made
of the PFDs of certain criminals, there is no notice
on your check stub of those. As long as the
Legislature appropriates only the amount that would
have been paid to certain criminals under (d) who are
now ineligible, but no more than that, and uses it for
only the designated uses that have been set out in the
statute, of which there are five potential, the
Legislature is free to distribute the money as it
chooses. As long as the appropriation in the budget
does not exceed this amount, and is only for these
uses, that fact will not appear on your dividend
check.
LARRY PERSILY, Deputy Commissioner with the Department of
Revenue, testified via teleconference and noted for the record
that he tried to testify on SB 58 as well, but the line was
unavailable.
He voiced the same concerns he did the last time the bills were
heard. By denying dividend elegibility to more people, the net
impact to the Child Support Enforcement Division will be that
more custodial parents will not receive money due to them.
Oftentimes the dividend is the only money the department is able
to collect on child support cases for the year.
SENATOR THERRIAULT asked for verification that each year he
might get several cents more in his dividend check that came
from what would have been a convicted felon's check.
MR. PERSILY replied that is correct.
LINDA WILSON from the Public Defender Agency echoed Mr.
Persily's comments about the effect the law would have. Many of
the individuals the agency represents are indigent and the PFD
is their primary source of income. That income pays for child
support among other things and a conviction for DUI would result
in that money being unavailable for child support. Oftentimes
the dividend is attached to pay for other financial obligations,
which would go unpaid as well if the PFD could not be attached.
Conviction for a second offense will affect payments for five
years. Both SB 58 and SB 59 will certainly reduce the ability to
attach PFDs to pay for obligations that are currently covered by
the PFD. Both bills will eliminate the ability for money to go
to the victims; instead that money will go back into the PFD for
the eligible applicants to receive. People that are convicted of
felonies and lose their PFDs have their checks pass to earmarked
funds. Under this legislation, this wouldn't be the case for the
person convicted of a DUI.
SENATOR COWDERY said everyone that gets a DUI conviction doesn't
pay child support. He thought many do keep up their child
support payments.
MS. WILSON pointed out that last year the Legislature increased
the penalties for DUI significantly and this would be in
addition to those increased penalties. Although she had no
objection to the increased penalties, she opined it might be
better to wait and see what the effects of that legislation were
on deterrents. Those people might have to forfeit their vehicle,
have a longer term for license suspension and have more
difficulty getting their license reinstated. With all those
increases, the loss of the PFD to cover any of the expenses
would be an additional penalty.
SENATOR COWDERY replied, "That's the intent."
MR. PERSILY reported that garnished dividends comprised about 15
percent of the Child Support Enforcement Division's entire
collection last year and, in total, more than $60 million was
taken from dividend checks for child support, state student
loans, state welfare fraud, unemployment fraud, and for private
creditors.
CHAIR SEEKINS said Senator Cowdery probably doesn't believe all
those people are going to get a DUI this year.
SENATOR COWDERY added, "Stiff penalties is true, but when we put
more jail time, that costs society more by housing these
people..."
SENATOR THERRIAULT asked how much of the $60 million was for
personal garnishments.
MR. PERSILY replied about $10 million of the $60 million went to
private individuals or creditors as opposed to state or federal
agencies.
There were no further questions or discussion.
SENATOR THERRIAULT made a motion to move CSSB 59(JUD) from
committee with individual recommendations and accompanying
fiscal notes.
SENATOR ELLIS objected. The impact on child support and crime
victims gave him pause and he didn't want to move the bill
forward at that time.
SENATOR THERRIAULT withdrew his motion.
CHAIR SEEKINS held SB 59 in committee.
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