Legislature(1999 - 2000)
04/12/1999 01:55 PM House 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 151 - REVOCATION OF MINOR DRIVER'S LICENSE CHAIRMAN KOTT announced the next order of business is HB 151, "An Act relating to revocation and reinstatement of the driver's license of a person at least 14 but not yet 21 years of age." Number 1570 CHAIRMAN KOTT indicated there is a committee substitute for HB 151, 1-LS049\S, Ford, 4/12/99. It basically gives the youth court some authority to hear cases involving possession of alcoholic beverages in violation of AS 04.16.050. It provides the department the opportunity to use the youth courts. It was recently brought to his attention to also include consumption. Number 1608 REPRESENTATIVE MURKOWSKI noted that the title changed, and asked Chairman Kott whether there have been changes to any sections regarding possession. CHAIRMAN KOTT replied no. The title changed to make it tighter. Number 1636 REPRESENTATIVE GREEN made a motion to adopt the committee substitute for HB 151 (1-LS0492\S, Ford, 4/12/99). There being no objection, it was so moved. Number 1658 [THE RECORD REFLECTS THAT LINDA WRIGHT'S TESTIMONY IS INTERMITTENTLY AUDIBLE.] LINDA WRIGHT testified via teleconference from Kenai. She still wonders whether the young people are getting their due process rights. When HB 21 and HB 299 were heard, it was assured that the hearing would allow for due process rights. She doesn't feel that is the case, however. Young adults and minors are being forced to provide the only evidence that can be used against them. In fact, the language in AS 28.15.184(g) indicates that hearings shall be "limited" to the issues of whether the person possessed or used a controlled substance. She asked, "And, if a person should miss the seven-day deadline, can we assume they don't need or warrant their due process rights?" She replied, "No, we can't." She hopes that the legislators will confer to the people who have and continue to be injured by this unfair law, and together come up with something that is both fair and constitutional. Number 1758 [THE RECORD REFLECTS THAT MARTHA HODSON'S TESTIMONY IS INTERMITTENTLY AUDIBLE.] MARTHA HODSON, Member, Guardian for Family Rights, testified via teleconference from Kenai. She referred to her daughters of which one didn't get her driver's license until she was 21. Her son will be close to 30 years old before getting his driver's license. She has a problem with that. She doesn't agree with them drinking, but they have graduated from high school and can vote for "you all." Her son was charged with the possession of a can chewing tobacco at 19 years of age. She admitted that she bought it for him and she admitted that to the judge. She reiterated she doesn't like them drinking and driving. Something needs to be done to restore the right of teenagers to talk to an attorney. Something needs to be done about the law to control them before the age of 21, but the DMV [Division of Motor Vehicles] should not have that much power after the age of 21. The courts should have that power. Number 1914 CHAIRMAN KOTT pointed out that the committee substitute would eliminate the term "consecutive" and insert the term "concurrent." He is not sure how anybody could be picked up with the "Use It, Lose It" law with a can of chewing tobacco, unless it has been laced with "some good stuff." Number 1935 LINDA JOHNSON, Legal Advisor, Anchorage Youth Court, testified via teleconference from Anchorage. She thanked the committee for considering alcohol consumption and possession cases as good for the youth courts. The wording, however, includes it under the Department of Health and Social Services when it does not handle violations, which is what a consumption of the possession of alcohol is. It gives the department a viewpoint. According to the McLaughlin Youth Center, they do not have the resources to take on the alcohol cases. She encouraged the committee members to consider amending that section to include language of jurisdiction for referrals. In addition, curfew and tobacco cases are also violations, and she encouraged the committee members to include them as well. Number 2040 CHAIRMAN KOTT announced he is in receipt of a document from Ms. Johnson indicating those suggestions. Number 2049 REPRESENTATIVE MURKOWSKI asked Ms. Johnson whether community work service in terms of a penalty or fine would be handled by the youth courts. MS. JOHNSON replied the Anchorage board of directors do not want to take on alcohol cases, but the other youth courts around the state want to. She thinks as soon as the statute is fixed and is in compliance with the courts then the Anchorage board of directors will change its mind. A standard penalty would be a certain amount of community work service between 5 to 15 hours, a mandatory essay of 500 to 3,000 words, and an alcohol class. The Anchorage Youth Court currently uses a youth intervention program from the Volunteers of America organization. Other types of classes would be anger management or any other specific class depending on what happened during the arrest. Number 2124 REPRESENTATIVE MURKOWSKI asked Ms. Johnson whether the Anchorage board of directors doesn't want to take on alcohol cases simply because of the jurisdiction issue, or is there something else contributing to the reluctance. MS. JOHNSON replied it is mostly the problem with the new court opinion that just came down. The board doesn't want the Anchorage Youth Court itself to simply be a monitoring agency. The board wants it to have a real effect. The board is afraid that there would be very little incentive for someone to follow through with a youth court penalty the way it is written now. The board doesn't know how to change that at the time, however. Number 2172 REPRESENTATIVE MURKOWSKI said, in recognition of the increase in the number of revocations of those under 21 years of age for possession or consumption, she asked Ms. Johnson what this would do to the youth court's workload. In other words, is it prepared to take on an increase like this? MS. JOHNSON replied it has considered the possible workload. According to a district attorney in Anchorage, he receives no more than 300 cases per year. Currently, the Anchorage Youth Court takes between 450 to 550 cases per year, but they are at the misdemeanor and felony levels. The Anchorage Youth Court would have to restructure its system. There is a limited amount of student members to draw from to make up a court. It would probably be structured more like traffic court and a little less like superior court. Number 2220 CHAIRMAN KOTT asked Ms. Johnson whether the penalties would be on a case-by-case basis. MS. JOHNSON replied the court is run on a case-by-case basis. It would depend on the mitigators or aggravators. The judges would have to be questioned, but the referring authority would be able to make recommendations on each case. Number 2265 CHAIRMAN KOTT asked Ms. Johnson what the costs are associated with an alcohol rehabilitation program. MS. JOHNSON replied the one that the Anchorage Youth Court currently uses is $125. It satisfies DMV's requirement, so a person can "kill two birds with one stone." Number 2280 CHAIRMAN KOTT asked Ms. Johnson how often the Anchorage Youth Court meets. MS. JOHNSON replied, currently, it has cases two to three days per week. Number 2287 CHAIRMAN KOTT asked Ms. Johnson whether it's awkward for a person to appear in youth court who is 21 plus years of age. MS. JOHNSON replied, currently, the Anchorage Youth Court does not take anybody who is 18 years old or older. She doesn't think even with alcohol cases youth courts would want to take 18-, 19-, or 20-year-olds. CHAIRMAN KOTT asked Ms. Johnson whether that would require a specification in statute. MS. JOHNSON replied yes. Number 2340 ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, came before the committee to testify. The Department of Health and Social Services would not be the referring agency to the youth courts. It would probably have to be the local police departments. There would have to be a requirement to develop some sort of standards of referral, if the wording is "may" rather than "shall". In addition, unless consumption is added, the minor consumption law would probably have to be revised for subsections to be charged under, so that a police officer could cite a person with a particular violation of possession rather than consumption. It would be easier than having some sort of fact-finding after the fact as to whether or not a person was cited for having a beer in his hand or on his person. She suggested requiring the chief administrative officer of the Alaska Police Standards Council to develop standards for what cases should go to the youth courts. She cited age as an example. TAPE 99-28, SIDE B Number 0001 ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health and Social Services, came before the committee to testify. The department does not have the authority over alcohol violation cases. The wording needs to be changed so that the youth courts can get these cases from the referring entities. Number 0023 CHAIRMAN KOTT said the committee recognizes its error. Number 0029 REPRESENTATIVE MURKOWSKI asked Mr. Buttcane whether the Department of Health and Social Services is involved with the alcohol course that the youth courts send people to. MR. BUTTCANE replied the course referenced by Ms. Johnson is approved by the Division of Alcoholism and Drug Abuse, and is recognized by the Division of Motor Vehicles. In that sense the department is connected to that program. Number 0062 REPRESENTATIVE MURKOWSKI asked Mr. Buttcane whether that program is geared towards adults or underage drinkers. MR. BUTTCANE replied that program is an alcohol information program. There isn't a formal screening process like in the adult system. There are provisions for a juvenile alcohol safety action program, but it has not been funded. Number 0116 CORY WINCHELL, Administrative Assistant to Representative Pete Kott, Alaska State Legislature, came before the committee to testify. He stated that the language under the committee substitute is not within the purview of the department. That can be changed. It was the intent to empower youth courts to hear minor-in-possession cases. It was the original intent for the "Use It, Lose It" law to come into compliance with its catch-name. It was also the original intent to address some of the convoluted fact-patterns surrounding possession by running it concurrently rather than consecutively, so that kids had a chance to ameliorate their behavior. MR. WINCHELL further stated that there are two court cases involving the "Use It, Lose It" law: Jada Quinn and Nina Storm v. State and Rexford v. State. The Storm case was a two-two split. It is not binding, only persuasive, and there were some good arguments from the superior court. The two young adults involved - Jada Quinn and Nina Storm - were in a campground outside of Anchorage. They disclosed to the police that they had taken some sips of beer and empty beer cans were lying around. They were 20 years old and were given a breath alcohol test. They blew .003 and .006, respectively. They were not around a vehicle, so the court worked through whether the revocation was punitive in nature or remedial. The court got into an analysis of the nexus between the time of drinking and its relation to a vehicle. In Rexford v. State, a young man's driver's license was revoked before bringing about the criminal charge. His attorney argued double jeopardy. In other words, the taking of a driver's license is punitive in nature, so the criminal action is double jeopardy. The court held that an administrative license revocation is not punishment for double jeopardy purposes. However, the court upheld that for due process there might be a punishment involved. Number 0293 REPRESENTATIVE ROKEBERG asked whether the committee substitute speaks to the issues raised by the two court cases. MR. WINCHELL replied no, but in side-meetings these kinds of questions have been raised. Number 0315 REPRESENTATIVE ROKEBERG said there is a split in the courts now and for a change the legislature could give the courts guidance. Number 0328 REPRESENTATIVE GREEN stated, when the original bill was passed, former-Representative Cynthia Toohey indicated that it was an attempt to go beyond the mere facts associated with a vehicle, but to punish teenagers for drinking before their time. That seemed like a good idea, but it hasn't been all that effective in cutting out consumption. It has been more damaging toward the need of people. If that is the case, the concept needs to be reviewed. Maybe, there is another avenue to pursue. Number 0374 REPRESENTATIVE JAMES said she saw a different level of complaint between a minor drinking and driving and a minor drinking. They are two different issues, and she wasn't willing to have the same deterrent/penalty for them both. Number 0403 MR. WINCHELL stated, in response to a comment made by Representative Rokeberg last week regarding the criminality of children by coming down so draconian, the bill does not seek to address any consumption issues. It says, if a person uses alcohol underage, it is against the law and a strong policy against that is needed - the loss of one's driver's license. CHAIRMAN KOTT noted the committee substitute does not address that; it only gives the youth courts the opportunity to hear cases involving possession. REPRESENTATIVE ROKEBERG asked Chairman Kott whether a person can still lose a driver's license for possession without driving. CHAIRMAN KOTT replied yes. That is one of the main issues that this committee needs to address. Number 0445 REPRESENTATIVE ROKEBERG referred to an example whereby a 19-year-old lost his driver's license because he was in an area where liquor was being served and his job because he didn't have a license. He is living on his own and has a learning disability. It was a series of stupid events that the law caused which should not have happened in the first place. Number 0482 CHAIRMAN KOTT asked Mr. Winchell, if a nexus is tied between the use of alcohol and driving followed by a revocation, what effect would that have on cases that have been thrown out by the courts, but the revocation still stood. Number 0522 MR. WINCHELL replied these are two different standards. The administrative revocation, when a police officer has probable cause to suspect consumption or possession, it is the same criminal law. A license will be revoked within seven days and a person has the right to appeal it. Pragmatically speaking, kids don't want their parents to find out and are letting the appeals slide. According to the DMV, the standard goes up for those who appeal. However, having done several probable cause hearings, the officer's reasons are stated and deferred to which establishes a higher standard. The criminal standard is higher, but this is a noncriminal violation under the current law. If a nexus is tied to a vehicle, a driver's license would not be lost, unless there is probable cause to suspect that somehow a person's drinking activity was tied to a vehicle. If a person is out camping and consuming or possessing alcohol and no vehicle is around, it would be difficult to establish probable cause. Arguably, a nexus could be tied to surrounding or leaning up against a running car, for example. Number 0607 CHAIRMAN KOTT asked Mr. Winchell whether the cases that have been tossed out by the courts would be minimal. MR. WINCHELL replied a higher burden could still not be met in a criminal case of possessing or consuming. However, by a probable cause standard, and even a clear and convincing standard at the appeals level, drinking has to be established around a car. He said, "Kids aren't walking down the street after taking a sip of beer and a police nabbing them and saying, 'Hey, I smell alcohol on your breath.' And, then writing in their report the standard three sentences, you know: bloodshot eyes, slurred speech, and slightly gazed. So, they've got their probable cause." It would be a little bit more difficult to charge and take their driver's licenses away. Number 0647 REPRESENTATIVE MURKOWSKI asked Mr. Winchell how a minor, who is consuming, is tied to a car who says he has a designated driver. Is he tied to the car because it is registered to his parents? MR. WINCHELL replied he doesn't know, but if he was a prosecutor he would argue there is a nexus to the vehicle because it is about to drive somebody somewhere. REPRESENTATIVE MURKOWSKI said she can see this becoming a slippery slope. Number 0705 REPRESENTATIVE JAMES said it is absolutely wrong for children underage to be drinking. It is important that they understand the seriousness of drinking and driving. The problem is, teenagers have a real good understanding of what's fair and not fair. They know about penalties, but if somebody else does something and doesn't get penalized, they can see the unfairness. And, it doesn't take much for teenagers to become rebellious for unfair treatment. It seems that this should be done so that there are steps along the way along with a real intensive campaign in the schools. They need to understand that if they drink at all, they could lose their driver's licence, even if they don't have one yet. Number 0809 MR. WINCHELL said the original "Use It, Lose It" law said, if a person consumes alcohol, that person will lose his driver's license. The issue now is using it at all or using it around a car. If it is not used around a car, a person would be put before the purview of the youth courts. Number 0854 REPRESENTATIVE ROKEBERG said, having listened to this and others dealing with it, he has concluded that he would not be comfortable supporting anything less than a real bright line of consuming while driving or being a passenger with an open container inside the car. The Storm case says that the provisions of existing Alaska law do not require that a minor be operating or even be in close proximity to a motorized vehicle. He thinks the law should be repealed. Number 0952 KEVIN HYDE testified via teleconference from Kenai. He likes Representative Rokeberg's idea. This is what he has been after, not because he wants children to be consuming alcoholic beverages or participating in the use of drugs, but for fairness. He would like to see this process recriminalized and returned to the courts. He said, give the courts the opportunity to be more flexible with treatments for second offenders. Blanket situations is why there are young people who are 18-19 years old and they can't drive until they are 40 years old. A judge can make other decisions, can make other referrals to different agencies, and can REPRESENTATIVE BERKOWITZmore creative with punishments. Number 1026 CHAIRMAN KOTT assigned the bill to a subcommittee consisting of Representative Rokeberg as chair, Croft and himself. The subcommittee is to consider the nexus of providing the youth courts to hear both consumption and possession of alcohol related cases. That may be more effective than recriminalizing the use of alcohol again.
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