Legislature(1993 - 1994)
02/10/1994 03:00 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 344 - ARREST OF MINORS FOR CONSUMING ALCOHOL Number 046 REP. FRAN ULMER, Prime Sponsor of HB 344,stated that HB 344 addressed the issue of the arrest of minors for consuming alcohol. She said at the present time there are no laws to allow police officers to arrest a minor for drinking unless the minor has been seen consuming the alcoholic beverage by the arresting officer. The minor cannot be arrested if an officer suspects, by the behavior and physical signs, that a minor has been drinking. She further stated that the proposed legislation not only would allow police officers to arrest minors whom they felt had been consuming alcohol, but it would also set a moral tone in a community and would perhaps prevent minors from getting into more trouble; i.e., prevent them from drinking and driving. REP. ULMER stated that she was asked to introduce the legislation by the Division of Chemical Dependency and the Department of Social Services in Juneau, the mayor's Task Force on Drug Abuse Among Juneau Youth, the Alaska Association of School Boards, and the Alaska Peace Officers Association. Number 144 REP. VEZEY asked about the referral Rep. Ulmer had made to a minor who has been drinking and then drives a car. Number 157 REP. ULMER stated that when the minor is in the vehicle, there would be a law that prohibits that act, and the proposal would allow an officer to make an arrest before the minor gets into a car. Number 160 REP. VEZEY asked how a minor would be convicted under the statute. Number 199 REP. ULMER replied that it is against the law for minors to consume alcohol. Number 208 REP. VEZEY asked what evidence would be used to convict the minor. Number 216 REP. ULMER stated that she would let the law enforcement people on teleconference answer. Number 232 REP. VEZEY stated that Driving While Under the Influence (DWI) statutes do not require a person to submit to a blood alcohol test or breath test, although if the test is refused, there would be forfeiture of license. He also asked how other illegal substances would be handled under the proposed legislation. Number 265 REP. ULMER responded by saying that the proposal was designed to address the inconsistency of having a law on the books that says it is illegal for minors to consume alcohol, but not allowing for arrest unless an officer actually sees them in the act of consuming alcohol. Number 297 (Rep. B. Davis arrived at 3:04 p.m. and Rep. Nicholia arrived at 3:07 p.m.) Number 305 REP. OLBERG asked if being drunk in public was against the law. Number 313 CHAIR BUNDE stated that in Anchorage it is not against the law to be drunk in public. Number 318 REP. KOTT wanted to correct for the record that Rep. Ulmer had said that a police officer could arrest a minor based on "probable cause" and that actually it would be "reasonable cause." Number 330 REP. ULMER agreed. Number 349 DON DAPCEVICH, Director of Chemical Dependency Services for the City and Borough of Juneau, testified in support of HB 344. He stated that he had noticed that the rates for arrests of minors consuming alcohol had gone down significantly until May of 1993, and after that time there were no arrests for a long period following. He then found that the district attorney had sent a memo to all law enforcement that said not to arrest minors for consuming alcohol unless they are seen consuming. From that time, he said he had been working with other city officials to draft local legislation to fill the "gap" until the legislature reconvened. MR. DAPCEVICH stated that there would still be a burden of proof for prosecution and thought it would be in the same manner that a DWI is proved. He felt it was important for all citizens to send an unequivocal message to minors in the state that drinking is illegal. He strongly urged the committee to pass the legislation. Number 455 JUANITA HENSLEY, Chief, Driver Services, Division of Motor Vehicles, Department of Public Safety, testified in support of HB 344. She stated that the court decision that made it illegal to arrest a minor for consuming alcohol with reasonable cause affected not only Southeast but also Southcentral; i.e., Palmer. MS. HENSLEY said that presently under current law an individual between 18 and 20 years of age is cited and taken to jail. If the person is under the age of 18, they are taken into custody and cited, a parent or guardian is called, and the case is referred to the Division of Family and Youth Services (DFYS). Number 542 REP. G. DAVIS said it was his understanding that the zero fiscal notes indicated that the proposed legislation had been common practice, but it had just been found to be illegal to make an arrest, therefore no additional funds would be needed. Number 555 MS. HENSLEY agreed. Number 569 CHAIR BUNDE asked if it was against the law for a minor to be in possession of alcohol. Number 571 MS. HENSLEY responded yes, but the courts in Southeast have determined possession to mean that the officer has to witness consumption, whereas before, "having consumed the alcohol, your body is in possession." Number 590 CHAIR BUNDE, for clarification, asked what other municipalities were interpreting the law "in this manner?" Number 601 MS. HENSLEY said, to her knowledge, Southeast, and specifically Palmer, were interpreting the law in that way. Number 614 CHAIR BUNDE asked if the Juneau city police and state troopers were carrying out the present intent of the law. Number 619 MS. HENSLEY responded yes. Number 620 CHAIR BUNDE asked if it was just the troopers in the Mat-Su valley that were not arresting minors for consuming alcohol. Number 623 MS. HENSLEY said that the Palmer Police Department was not making arrests either. Number 629 REP. KOTT, in reference to Ms. Hensley's scenario of a minor stumbling around extremely intoxicated, asked if under current law could the minor be arrested. Number 636 MS. HENSLEY said no. Number 638 REP. KOTT said, "doesn't it also apply to adults...the police also have their hands tied because of...we used to have a law, I think, on the books." Number 548 MS. HENSLEY said she could not answer that question, but stated that individual municipalities may have "drunk in public" laws. Number 555 REP. KOTT asked for another example of reasonable cause. Number 565 MS. HENSLEY related a scenario of a beach party where police officers see kegs of beer but do not see an obviously intoxicated minor with a beer in hand at that time. Number 674 REP. TOOHEY asked if under the proposed legislation would a blood alcohol or Breathalyzer test be done. Number 682 MS. HENSLEY stated that a preliminary breath test and an intoximilar 3000 test could be done, and also the smell of alcohol or visual indications (bloodshot, watery eyes or intoxicated behavior) would be sufficient. Number 689 REP. TOOHEY asked if a blood test could be done without parental permission. Number 690 MS. HENSLEY said she could not answer the question. Number 698 REP. TOOHEY stated that a Breathalyzer was sufficient. Number 699 REP. VEZEY said, "forgive me for being confused, but it appears that what we're doing here is proposing a statute that says we can arrest people for breaking the law." Number 724 MS. HENSLEY said that the courts have said that unless a police officer sees a minor consuming alcohol, the current statute would not apply. Number 735 REP. VEZEY felt that the proposed legislation did not address the problem. Number 754 MS. HENSLEY said that the legislation would allow police officers to enforce Title 4.16.050. Number 760 REP. VEZEY, in reference to Mr. Hensley's reply, said that it is not legal to enforce Title 4 at this time. MS. HENSLEY agreed. REP. OLBERG explained that any misdemeanor arrest must be observed, and what the courts have determined is that a police officer must actually see the minor consuming. Number 789 MS. HENSLEY pointed out that HB 344 would allow the police to make a warrantless arrest, explaining that under current law an officer would have to obtain a warrant to arrest a minor for consuming alcohol. REP. G. DAVIS said that the authority was given to arrest a minor for reasonable cause under existing law. CHAIR BUNDE asked if the thrust of the proposed legislation was to change from probable cause to reasonable cause. Number 850 MARGOT KNUTH, Assistant Attorney General, Criminal Division, Department of Law, testified in support of HB 344. She responded to Chair Bunde's question by stating the thrust of the problem as being that there is a court ruling that says a warrantless arrest is not allowed of a minor consuming alcohol. She stated that the court ruling would more than likely spread to Anchorage and Fairbanks. She said the problem could be approached two ways. First, the minor consuming offense could be changed to say that possession of alcohol includes possession by consumption, or the warrantless arrest statute could be changed. She stated that the Department of Law did not like the idea of an officer having to walk away from an obviously intoxicated minor under current law. Number 902 CHAIR BUNDE closed public testimony and stated that it was not his intention to move the bill out of committee. Number 920 REP. VEZEY stated that he was not in opposition to the bill, but he felt that further legal research should be done. Number 930 REP. KOTT asked what requirement would there be under the proposed legislation that would allow the Department of Law to require a Breathalyzer or blood test from a violator, and subsequently what would happen if the arrested minor refused. Number 942 MS. KNUTH stated that the department did not have the authority to require those tests unless the minor was driving. She further stated that she would make herself available to legislators and their staff to answer questions before HB 344 comes up for hearing again. CHAIR BUNDE thanked Ms. Knuth for her testimony. Number 979 REP. NICHOLIA made a motion to move the HB 344 out of committee to Judiciary where the legal problems could be better addressed. Number 983 CHAIR BUNDE stated again that it was not his intention to move the bill out of committee. He then brought HB 332 to the table.
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