Legislature(2003 - 2004)

03/09/2004 03:07 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 175-PRIOR CONVICTIONS FOR DUI                                                                                              
Number 0950                                                                                                                     
                                                                                                                                
CHAIR WILSON announced that the  final order of business would be                                                               
HOUSE BILL  NO. 175, "An  Act relating  to issuance of  a limited                                                               
driver's license;  relating to driving while  under the influence                                                               
of an  alcoholic beverage, inhalant, or  controlled substance and                                                               
refusal to take  a chemical test for consumption  of an alcoholic                                                               
beverage, inhalant,  or controlled  substance; and  providing for                                                               
an effective date."                                                                                                             
                                                                                                                                
Number 0975                                                                                                                     
                                                                                                                                
REPRESENTATIVE SEATON  moved to adopt  HB 175, version U,  as the                                                               
working document.   There being  no objection, HB 175,  version U                                                               
was before the committee as the working document.                                                                               
                                                                                                                                
Number 0997                                                                                                                     
                                                                                                                                
AMANDA WILSON,  Staff to  Representative Norman  Rokeberg, Alaska                                                               
State   Legislature,  testified   on  behalf   of  Representative                                                               
Rokeberg,  sponsor  of  HB  175.    She  explained  that  HB  175                                                               
accomplishes three  things.  It allows  limited driver's licenses                                                               
for people  who are  in wellness and  therapeutic courts.   These                                                               
courts agree  that this  would be a  beneficial incentive  to get                                                               
DUI offenders to participate and  comply with the provisions, she                                                               
said.   The bill also  changes the look-back period  on inclusion                                                               
of prior driving  under the influence (DUI) offenses  to 15 years                                                               
instead of the current lifetime  look-back.  Ms. Wilson commented                                                               
that prior  to current law  there was  a 10-year look-back.   She                                                               
said that this  law also clarifies the  legislature's intent that                                                               
minimum fines  be imposed  unless the person  is involved  in the                                                               
wellness and therapeutic courts.                                                                                                
                                                                                                                                
MS. WILSON said that the  limited driver's license provisions for                                                               
people  in wellness  and therapeutic  courts  would provide  that                                                               
upon graduation  they would receive  a limited  driver's license.                                                               
She pointed  to the  copy of  the statute  [AS 28.35.030]  in the                                                               
members' packet  which shows  the statute  by which  the wellness                                                               
court operates.   Subsection (p) has eight provisions  of what is                                                               
required of a  wellness court.  Ms. Wilson  read the requirements                                                               
are as follows:                                                                                                                 
                                                                                                                                
     (1) requires participation for  at least 18 consecutive                                                                    
     months;                                                                                                                    
     (2)  includes planning  and  treatment  for alcohol  or                                                                    
     drug addiction;                                                                                                            
     (3) includes emphasis on personal responsibility;                                                                          
     (4)  provides  in-court  recognition  of  progress  and                                                                    
     sanctions for relapses;                                                                                                    
     (5)  requires payment  of  restitution  to victims  and                                                                    
     completion of community work service;                                                                                      
     (6) includes  physician approved treatment  of physical                                                                    
     addiction and treatment of  the psychological causes of                                                                    
     addiction;                                                                                                                 
     (7)   includes  a   monitoring  program   and  physical                                                                    
     placement or housing; and                                                                                                  
     (8) requires adherence to conditions of probation.                                                                         
                                                                                                                                
Number 1148                                                                                                                     
                                                                                                                                
MS.  WILSON stated  that the  wellness  court program  is a  very                                                               
rigorous  treatment program.   There  has been  a lot  of success                                                               
with the  people who  are participating  in it.   The  people are                                                               
watched closely  so there  is greater  likelihood that  the court                                                               
could  see  if  something  were  going  wrong,  and  the  limited                                                               
driver's license could be revoked.   She emphasized that in order                                                               
for  an  individual  to  get  a  limited  driver's  license  upon                                                               
graduation  from the  court treatment  program he/she  would have                                                               
had  to be  in the  program  for at  least  18 months.   That  is                                                               
basically  a guarantee  that the  person  has been  sober for  at                                                               
least 18 months.                                                                                                                
                                                                                                                                
MS.  WILSON  pointed to  the  Office  of Justice  Programs  (OJP)                                                               
[report dated April 1998] in the  members' packet.  She asked the                                                               
members to  look at page  4 where the  OJP report states  what is                                                               
believed to  be an important  focus for therapeutic courts.   She                                                               
read one point from the report as follows:                                                                                      
                                                                                                                                
     Development of  legal changes to amend  current laws to                                                                    
     allow for limited driving  privileges of some convicted                                                                    
     drunk  drivers who  have had  their licenses  suspended                                                                    
     (i.e., to get to treatment or a job).                                                                                      
                                                                                                                                
MS.   WILSON  reiterated   that  the   courts  are   behind  this                                                               
legislation  because it  is believed  that  this law  would be  a                                                               
useful  tool.    She  directed  the  members'  attention  to  the                                                               
National  Conference of  State Legislature's  report on  the look                                                               
back periods [Drunk Driving Sanctions,  Time Fames Used by States                                                               
for Inclusion of  Prior Offenses], and pointed out  that only the                                                               
state of Massachusetts has a  lifetime look back period; and only                                                               
one other state  has a 15 year look back  period, so Alaska would                                                               
be matching that  state for some of the harshest  statutes in the                                                               
country.  Ms. Wilson explained that  is one reason for the change                                                               
in the  look back period.   She pointed  out that the  purpose of                                                               
the  harsh consequences  was  to address  the  problem of  repeat                                                               
offenders.  It  is not intended to address individuals  who had a                                                               
DUI in their youth and then  later in life have a second offense.                                                               
This legislation is intended to  deal with the individual who has                                                               
had three DUIs in 15 years, she stated.                                                                                         
                                                                                                                                
Number 1311                                                                                                                     
                                                                                                                                
MS.  WILSON  told  the  members  that for  a  second  offense  an                                                               
individual would serve not less than  20 days in jail and receive                                                               
a  fine of  not less  than $3,000.   That  fine could  be reduced                                                               
through wellness  court, but the person  who has had two  DUIs 30                                                               
years apart really  is not an appropriate  candidate for wellness                                                               
court.   She summarized that  this is a harsher  consequence than                                                               
was intended  for that offender.   It  is very different  than an                                                               
individual  who gets  three DUIs  within  15 years.   Ms.  Wilson                                                               
mentioned  that  the  bill  packet has  copies  of  letters  from                                                               
individuals who were caught in this  net and asked the members to                                                               
take the time to look at them.                                                                                                  
                                                                                                                                
MS. WILSON  commented that the  final portion of the  bill states                                                               
that the courts should be imposing  the minimum fines.  The court                                                               
should  not be  suspending a  portion of  those fines  unless the                                                               
individual is in wellness or therapeutic court.                                                                                 
                                                                                                                                
Number 1347                                                                                                                     
                                                                                                                                
CHAIR  WILSON  announced  that  Representative  Wolf  joined  the                                                               
meeting about ten minutes ago.                                                                                                  
                                                                                                                                
CHAIR WILSON  commented that one  of her constituents  was caught                                                               
in the  net Ms. Wilson described.   This person is  56 years old,                                                               
got a DUI,  and the only other offense was  27 years earlier when                                                               
he  was 19  years  old.   The  fine  was $3,000.    She said  she                                                               
believes this  is an  appropriate change  because there  are some                                                               
individuals  who   are  not  habitual  offenders   that  will  be                                                               
inappropriately penalized.                                                                                                      
                                                                                                                                
Number 1404                                                                                                                     
                                                                                                                                
REPRESENTATIVE WOLF  asked if the  permit for a  limited driver's                                                               
license  would include  a commercial  driver's  license (CDL)  to                                                               
work  as a  taxi  cab  driver or  bus  driver,  or a  chauffeur's                                                               
license.                                                                                                                        
                                                                                                                                
MS.  WILSON  replied  that there  are  specific  requirements  in                                                               
statutes for  those types of licenses.   She said she  would look                                                               
into the impact of this legislation and get back to him on it.                                                                  
                                                                                                                                
Number 1435                                                                                                                     
                                                                                                                                
CHAIR WILSON remarked  that the Division of Motor  Vehicles is on                                                               
line and could likely address that question.                                                                                    
                                                                                                                                
Number 1455                                                                                                                     
                                                                                                                                
KERRY  HENNINGS, Manager,  Driver  Licensing,  Division of  Motor                                                               
Vehicles, Department  of Administration, testified on  HB 175 and                                                               
answered  questions from  the committee.   She  told the  members                                                               
that  based  on state  and  federal  regulations individuals  who                                                               
receive  DUI's  cannot  be  issued a  limited  license  for  work                                                               
purposes.   However, the individual could  surrender his/her CDL,                                                               
get a non-commercial license, and obtain gainful employment.                                                                    
                                                                                                                                
REPRESENTATIVE WOLF posed a hypothetical  question where a person                                                               
has  a DUI  at  the age  of  19 years  old and  at  45 years  old                                                               
receives  another DUI.   In  this case  it is  possible that  the                                                               
individual could lose his/her job as a truck driver.                                                                            
                                                                                                                                
MS. HENNINGS responded that is correct.                                                                                         
                                                                                                                                
Number 1517                                                                                                                     
                                                                                                                                
REPRESENTATIVE  CISSNA  commented that  it  is  her view  that  a                                                               
person who receives a DUI  is living an extraordinarily dangerous                                                               
lifestyle.   She said she  believes that driving is  a privilege,                                                               
not a  right.  Representative Cissna  shared that when she  was a                                                               
young woman she had neighbors who  were killed by a truck and did                                                               
not get her  license to drive until she was  22 years old because                                                               
of the impact it had on her life.                                                                                               
                                                                                                                                
REPRESENTATIVE CISSNA read  from page 5, lines 17  through 20, of                                                               
the bill which said:                                                                                                            
                                                                                                                                
     ... the  court may grant limited  license privileges to                                                                    
     a  defendant  if  the court  determines  that  (1)  the                                                                    
     defendant's  ability  to   earn  a  livelihood,  attend                                                                    
     school or  provide for family health  would be impaired                                                                    
     without a  limited license, and  (2) there will  not be                                                                    
     excessive danger to the public.                                                                                            
                                                                                                                                
REPRESENTATIVE CISSNA  commented that  she assumes  an individual                                                               
would not  be going  through this process  unless there  had been                                                               
some damage done.                                                                                                               
                                                                                                                                
Number 1623                                                                                                                     
                                                                                                                                
MS.  WILSON agreed  with Representative  Cissna.   She  responded                                                               
that in  order to be in  a therapeutic court an  individual would                                                               
have to have a criminal charge pending.   It is likely that it is                                                               
a DUI charge.  She told  the members that it is her understanding                                                               
that there  would not actually have  to have been an  accident to                                                               
be in  this court.   Ms. Wilson added  that she will  verify that                                                               
point for the committee.                                                                                                        
                                                                                                                                
REPRESENTATIVE   CISSNA  replied   that  she   would  like   that                                                               
confirmation, because  her concern is  that someone who  has made                                                               
the judgment to  drive while drunk would have  a limited license.                                                               
She also pointed out the  discrepancies between the determination                                                               
on  page 2,  line 6,  where "severely  impaired" is  used as  the                                                               
criteria in  allowing a limited  license and  on page 5  the term                                                               
"impaired"  is used.    This appears  to be  a  lessening of  the                                                               
standard, she stated.                                                                                                           
                                                                                                                                
MS. WILSON agreed with that point.   She told the members that it                                                               
had been  her intention to  remove the word "severely"  from both                                                               
sections.   She added that it  was an oversight and  would not be                                                               
opposed to an amendment that  would [remove] the term severely in                                                               
the section  that deals with  therapeutic courts.   She explained                                                               
that during  discussions with  the Department  of Law  there were                                                               
concerns  that  there  could be  litigation  over  what  severely                                                               
meant.                                                                                                                          
                                                                                                                                
Number 1738                                                                                                                     
                                                                                                                                
CHAIR  WILSON commented  that the  terms  severely impaired  does                                                               
leave an opening for a lot of litigation.                                                                                       
                                                                                                                                
REPRESENTATIVE CISSNA asked for  a court system representative to                                                               
speak to this point.                                                                                                            
                                                                                                                                
BARBARA BRINK,  Director, Public  Defender Agency,  Department of                                                               
Administration, testified  on SB 175 and  answered questions from                                                               
the members.   She pointed  out that  she does not  represent the                                                               
court  system.   Expanding the  pool of  individuals eligible  to                                                               
receive a limited license is a  good policy.  There are many safe                                                               
guards in place to ensure  that concerns are addressed, she said.                                                               
Ms.  Brink explained  that  any  person who  is  charged with  an                                                               
unclassified  felony or  a class  A felony,  which would  include                                                               
manslaughter  or  assault in  the  first  degree, is  statutorily                                                               
excluded from participating in the  therapeutic court.  She added                                                               
that anyone who  has had his or her probation  revoked or who has                                                               
been convicted  of criminally negligent  homicide would  also not                                                               
be eligible to participate.                                                                                                     
                                                                                                                                
Number 1828                                                                                                                     
                                                                                                                                
MS. BRINK  explained that her  experience with  obtaining limited                                                               
driver's  licenses  through  the  judiciary  has  been  difficult                                                               
because  it  is  very  cautious.   The  judiciary  requires  very                                                               
specific  information  including  whom  the  individual  will  be                                                               
working  for and  the  hours  and locations  the  person will  be                                                               
driving.  She added that this  option is only eligible for people                                                               
already  involved   in  intensive  treatment  programs   and  the                                                               
individuals are  under close supervision where  alcohol tests are                                                               
given  randomly three  times per  week.   This close  supervision                                                               
does not resemble probation.   For instance, the individuals must                                                               
go to court once per week,  meet with their case managers, and be                                                               
tested.  These are significant safe guards, she said.                                                                           
                                                                                                                                
MS. BRINK said  that she appreciates section 4 of  the bill which                                                               
reduces the  look back provision.   The only sections she  is not                                                               
too fond of are sections 2 and  3 which does not allow the courts                                                               
discretion  in determining  an appropriate  fine.   She explained                                                               
that  it is  important to  note  whether the  individual has  any                                                               
ability  to pay  the fine.   For  some individuals,  every dollar                                                               
that is paid in a fine  is not available for restitution, payment                                                               
for child support,  or available for support  of the individual's                                                               
family.  Huge  fines may work as a deterrent  for people who have                                                               
money, she commented.                                                                                                           
                                                                                                                                
Number 2004                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GATTO shared  that there  currently is  other DUI                                                               
legislation  [HB  342] making  its  way  through the  legislative                                                               
process  that he  and  Representative  Gruenberg are  sponsoring.                                                               
Representative Gruenberg  discussed the  concept of  an interlock                                                               
in the late  1990s.  He explained that the  interlock is a device                                                               
that allows  an individual's car to  be rigged in a  way in which                                                               
an individual  would have to use  a breathalyzer and show  a zero                                                               
reading in order  for the vehicle to operate.   He suggested that                                                               
the two pieces of legislation may  be combined and produce a more                                                               
comprehensive approach.   This  legislation may  really encourage                                                               
individuals to get  help.  Representative Gatto  said he believes                                                               
that throwing  people in jail  only results in  offenders finding                                                               
more  friends to  drink  with.   He  told  the  members that  the                                                               
interlock has been very successful in  other states and it is the                                                               
one  thing  that takes  [drunk]  people  off  the roadways.    He                                                               
summarized his comments by saying  that drinkers have a 350 times                                                               
higher rate of accidents than sober individuals.                                                                                
                                                                                                                                
Number 2182                                                                                                                     
                                                                                                                                
JANET McCABE, Chair, Partners for  Progress, testified on SB 175.                                                               
She explained that Partners for  Progress is an organization that                                                               
has worked  toward the  development of  therapeutic courts.   She                                                               
said  she believes  this is  an important  element in  preventing                                                               
repeated alcohol offenses.  She  said that Judge Wanamaker refers                                                               
to this  as getting the alcohol  out of the alcoholic.   Partners                                                               
for Progress  believes that limited  license privileges  could be                                                               
granted  to  therapeutic court  graduates  and  still ensure  the                                                               
protection  of the  public.   The limited  license would  only be                                                               
allowed for those  individuals who had demonstrated  18 months of                                                               
sobriety  and  have  completed a  very  demanding  program  which                                                               
integrates  the individuals  into a  responsible community.   She                                                               
added that  limited license privileges  are permitted on  a case-                                                               
by-case  basis by  the judge.   The  judge could  also insist  on                                                               
other condition in which the  license privilege could be offered,                                                               
such as the interlock device that was mentioned earlier.                                                                        
                                                                                                                                
MS.  McCABE pointed  to  page  1, line  10,  where  it refers  to                                                               
limited license  privileges for  the final  60 days  during which                                                               
the license is revoked.  She  commented that she does not believe                                                               
that is the intent of the courts.                                                                                               
                                                                                                                                
CHAIR WILSON agreed with Ms. McCabe's point.                                                                                    
                                                                                                                                
Number 2234                                                                                                                     
                                                                                                                                
MS.  WILSON  commented that  it  was  [the sponsor's]  intent  to                                                               
remove  the words  "final 60  days"  as an  incentive, and  would                                                               
support an amendment to remove them.                                                                                            
                                                                                                                                
Number 2254                                                                                                                     
                                                                                                                                
REPRESENTATIVE GATTO moved Amendment 1 as follows:                                                                              
                                                                                                                                
     Page 1, line 10, [after the word "privileges]"                                                                             
     Delete "for the final 60 days during"                                                                                      
                                                                                                                                
Number 2273                                                                                                                     
                                                                                                                                
REPRESENTATIVE CISSNA objected for purposes of discussion.                                                                      
                                                                                                                                
REPRESENTATIVE GATTO restated Amendment 1 as follows:                                                                           
                                                                                                                                
     Page 1, line 10, [after the word "privileges]"                                                                             
     Delete "for the final 60 days"                                                                                             
                                                                                                                                
REPRESENTATIVE  CISSNA commented  that she  has enormous  respect                                                               
for Janet  McCabe and her work,  but would like to  hear from the                                                               
courts on this point.                                                                                                           
                                                                                                                                
CHAIR WILSON  said if Amendment  1 was  adopted it would  read as                                                               
follows:                                                                                                                        
                                                                                                                                
     ...of the department when  revoking a driver's license,                                                                    
     privilege to  drive, or privilege  to obtain  a license                                                                    
     under  AS  28.15.165(c),   may  grant  limited  license                                                                    
     privileges during which the license is revoked if ...                                                                      
                                                                                                                                
Number 2339                                                                                                                     
                                                                                                                                
MS. BRINK said that the  mandatory license revocation periods are                                                               
extensive.   As was noted  the final 60 days  can be a  very long                                                               
time  subsequent to  when a  person  has been  sentenced and  has                                                               
participated  in a  treatment  program, so  allowing  it for  the                                                               
final  60 days  is  really  not much  of  an  incentive to  these                                                               
individuals.                                                                                                                    
                                                                                                                                
TAPE 04-19, SIDE B                                                                                                            
                                                                                                                                
Number 2349                                                                                                                     
                                                                                                                                
MS.  HENNINGS   explained  that  the   60  day  language   in  AS                                                               
28.15.201(b)   that  covers   limited   licensing  was   inserted                                                               
specifically for  first offenders who  are the only ones  able to                                                               
obtain a limited  license.  It is important  that offenders serve                                                               
the  first  30  days  of  the 90  day  revocation  period.    She                                                               
suggested that the language could be changed to read as follows:                                                                
                                                                                                                                
     [Page 1, line 9 and 10, after the word "privileges"]                                                                       
     Insert "after the first 30 days of revocation"                                                                             
                                                                                                                                
MS.  HENNINGS said  she believes  this language  would solve  the                                                               
problem through out  the statutes.  She  reiterated that everyone                                                               
would serve at least 30 days.                                                                                                   
                                                                                                                                
Number 2309                                                                                                                     
                                                                                                                                
MS.  BRINK told  the members  that  the Alaska  statutes has  the                                                               
following mandatory minimums as follows:                                                                                        
                                                                                                                                
     Driver's license  must be revoked  for 30 days  for the                                                                    
     first   DUI  conviction,   1   year   for  the   second                                                                    
     conviction, and  not less  than 3  years for  the third                                                                    
     conviction.                                                                                                                
                                                                                                                                
MS. BRINK commented that those are lengthy periods of time.                                                                     
                                                                                                                                
CHAIR  WILSON  pointed out  that  the  language says  "may  grant                                                               
licensing  privileges,  not  "shall grant  licensing  privileges.                                                               
This change would provide the judge some discretion.                                                                            
                                                                                                                                
Number 2278                                                                                                                     
                                                                                                                                
REPRESENTATIVE  CISSNA said  she  is concerned  about second  and                                                               
third offenders.   She asked  if this change would  supercede the                                                               
statutes.                                                                                                                       
                                                                                                                                
MS. WILSON  clarified that the  statute reads "if  the individual                                                               
has not  been previously convicted."   The final 60  day language                                                               
refers to  those individual who  have committed a  first offense.                                                               
These  individuals could  go through  the DMV  and get  a limited                                                               
driver's license.   If the  person has been  previously convicted                                                               
the  individual  must be  participating  in  a therapeutic  court                                                               
program so that would be a  minimum of 18 months before the court                                                               
could grant  a limited  driver's license  upon the  completion of                                                               
the program.                                                                                                                    
                                                                                                                                
Number 2168                                                                                                                     
                                                                                                                                
REPRESENTATIVE  CISSNA removed  her  objection.   There being  no                                                               
objection, Amendment 1 was adopted.                                                                                             
                                                                                                                                
Number 2142                                                                                                                     
                                                                                                                                
REPRESENTATIVE GATTO moved to report  CSHB 175, Version U, out of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal  notes.   There  being  no  objection, CSHB  175(HES)  was                                                               
reported out of  the House Health, Education  and Social Services                                                               
Standing Committee.                                                                                                             

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