Legislature(1999 - 2000)
04/23/1999 01:45 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 that 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 1322
REPRESENTATIVE GREEN made a motion to adopt the proposed committee
substitute, Version 1-LS0492\X, Ford, 4/23/99, as the working
document before the committee. There being no objection, it was so
ordered.
CORY WINCHELL, Administrative Assistant to Representative Kott,
Alaska State Legislature, came before the committee to present the
proposed committee substitute. He stated that it includes two
changes from the previous version. He directed the committee to
page 5, line 1, which excludes the last part of the definition of
"possessed alcohol" and noted that constructive possession was
excluded.
CHAIRMAN KOTT interjected and stated that the previous version
removed possession, while this version inserts and defines
possession.
Number 1391
REPRESENTATIVE JAMES asked whether the alcohol must be in the
individual's hand.
MR. WINCHELL said that the individual must have the alcohol in
their hand or on their person. In response to Representative
James, Mr. Winchell affirmed that the individual could get rid of
the alcohol in a hurry.
CHAIRMAN KOTT said that the rationale was that, in order to be
stopped, there is probable probable cause, such as the officer
seeing an alcoholic beverage in someone's hand. Chairman Kott
said, "In theory, you could in fact have it in the car when you're
stopped for another violation and see a six pack in the back seat
and nobody claiming it, but I'm not sure if there's another way to
get around it."
MR. WINCHELL noted that the previous discussion regarding the
myriad of fact-patterns regarding how possession can result in the
loss of a license was a policy call because constructive possession
can result in the loss of a license. Mr. Winchell clarified that
the intent was to ensure that the individual had the alcohol in
their hand, on their person, or in the observation of a police
officer in order to have probable cause established.
Number 1423
MR. WINCHELL noted that the second change encompassed in the
proposed committee substitute removed the youth courts because
there is another piece of legislation that has youth courts within
its purview.
Number 1468
CHAIRMAN KOTT stated that youth courts were removed from the
proposed committee substitute after discussions with the Department
of Law and the potential problems.
Number 1476
REPRESENTATIVE JAMES clarified that whether the youth courts were
not eliminated because of its presence in another bill.
MR. WINCHELL explained that he had discussed this with Anne
Carpeneti [Assistant Attorney General, Department of Law]. That
discussion determined that, if language permitting the youth courts
to impose community service was to be included, that could rise to
a level in which due process procedures would require a jury trial.
Therefore, more money would be dealt with and the question would
arise as to whether, "...it is within their purview to be making
those kinds of determinations of probable cause issues."
Therefore, the youth courts were removed. Mr. Winchell indicated
that the youth court legislation which addresses other surcharge
issues would be a better vehicle to address this issue.
Number 1521
CHAIRMAN KOTT explained, as the bill currently stands, there is
possession and consumption occurring in the vehicle; there is a
tight nexus; there is a provision where an individual can reapply
for a revoked license in which the compiling of sentences on these
violators has been taken into consideration.
Number 1559
REPRESENTATIVE JAMES inquired as to whether this is part of the
"Use It, Lose It" legislation. She also inquired as to the effect
this would have, specifically the language referring to "occupying
a motor vehicle".
Number 1578
MR. WINCHELL replied yes the bill amends certain sections of the
"Use It, Lose It" law. The "occupying" language has not been
researched completely. Mr. Winchell clarified that the language
means that an individual is physically consuming.
Number 1612
REPRESENTATIVE MURKOWSKI asked whether the definition of a motor
vehicle includes a recreational vehicle (RV). She noted that some
of the worst offenses of underage drinking that she has seen is
drinking in a parked RV at a recreational area.
MR. WINCHELL replied yes.
Number 1630
REPRESENTATIVE KERTTULA noted that there are DWI (drinking while
intoxicated) cases with vehicles that are not operable, which she
feels is a bit unfair. It's broadly defined.
CHAIRMAN KOTT expressed concern with an intoxicated individual who
is in a parked car that is not running and is charged with a DWI.
Number 1708
HELENE HERNDON testified via teleconference from Homer. She is a
20 year resident of Homer. The zero tolerance for underage
drinking appears to be unconstitutional according to superior court
rulings that have been handed down. She wondered, therefore, why
a law - that is unconstitutional to begin with - is being revised.
Why is this law not being repealed? She knows of at least 30
children in Homer who have lost their license, although they were
not driving at the time. This is costing a lot of money and
creating more complications. Ms. Herndon noted that she did not
have a copy of the proposed committee substitute, Version "X." She
asked whether a person can have his or her license revoked, if that
person with a beer is not near a vehicle.
CHAIRMAN KOTT explained that Version "X" has language that requires
the establishment of a nexus between the offense being committed
and the penalty. Therefore, an underage person walking along with
a beer would not have his/her license revoked.
MR. HERNDON inquired as to what would happen to those underage
individuals who have had their licenses revoked under the previous
law.
CHAIRMAN KOTT said that those individuals were subject to the law
of the land at that time, but he believed that those individuals
could have their licenses reissued under the provisions of this
bill.
MR. HERNDON asked whether the "X" version is still configured so
that repeat offenders would have to have in excess of one year
remaining on their suspension.
CHAIRMAN KOTT replied correct. That is still retained in version
"X."
MR. HERNDON stated that this law should be repealed rather than
passed.
Number 1870
LINDA WRIGHT testified via teleconference from Kenai. She
expressed concern that Alaska's youth have been deprived of their
due process rights. She referenced House Finance Standing
Committee minutes from March 23, 1994, in which Representative
Grussendorf noted his concern regarding the authority granted to
peace officers. Ms. Wright read:
"Ms. Knuth pointed out that a right to appeal would be
available to the offender, initial action taken by the
peace officer would be the same in any case, although
there will be an administrative procedure and that a
neutral person would act on behalf of the executive
branch in a quasi-judicial function. She added that
there are many process rights which accompany judicial
proceedings and which would provide safeguards within the
system."
MS. Wright said that she did not see where the safeguards were
being provided. For example, if an underage individual misses the
seven day period for the hearing process, his rights are waived,
which she did not believe to be constitutional. And, because
probable cause seems to be so important to these laws and the
hearing for review is limited by law to the issues of age and
whether they possess or consumed alcohol or controlled substances;
she asked when does the probable cause come in there? When do they
have a chance to discuss probable cause or present evidence. She
respectfully requested that the committee restore the
constitutional rights for children in Alaska.
Number 1984
CHAIRMAN KOTT clarified that the proposed committee substitute
specifies that the underage drinker must have alcohol in their hand
or on their person, which would establish probable cause.
Number 2006
KEVIN HYDE, President, Good Legislation Assures Democracy
(G.L.A.D.) testified via teleconference from Kenai. He has always
held the position that the administrative process be revoked, and
he had hoped that this committee would have removed the
administrative process and returned it to the courts. Although it
may seem dangerous in the current political climate to allow a vote
on a law perceived by some as supportive of the use of alcohol or
drugs, but it is the opinion of the majority of the members of
G.L.A.D. that they do not believe it is acceptable for youth to use
alcohol or drugs and such should not be endorsed. He further noted
with regard to probable cause, that the committee is relying on the
hearing to address the probable cause issues. Although the
legislation provides a nexus for the alcohol and a motor vehicle,
for which Mr. Hyde lobbied, the administrative hearing process does
not allow discussion regarding that nexus. Mr. Hyde read the
following from a Division of Motor Vehicles' (DMV) citation
provided to an offender of this law:
"If you make a final request for a hearing and you have
a valid license to drive, you will get a temporary
license. The temporary license lets you drive until the
date of the hearing. At the hearing, the hearing officer
will listen to your side of the story, however you need
to focus on the reasons for the hearing. These reasons
are called issues. The hearing is limited to issues
regarding your case. The issues are whether you are
between 14 and 21 years of age and whether the officer
has probable cause to believe that you used a drivers
license as false identification, possessed or consumed
alcohol, possessed or consumed a controlled substance,
operated a vehicle after consuming alcohol or refused to
take a test to measure the alcohol content of your
breath. The hearing officer will weigh the evidence and
sworn testimony. The hearing officer will decide based
on the evidence, whether or not to revoke your privilege
to drive."
MR. HYDE noted that the citation language does not permit
discussion regarding the nexus to drive nor does it permit
discussion on any evidence that was illegally obtained.
Furthermore, discussion of an illegal search, seizure, or illegal
entry into a private residence or property is not permitted.
Although that may seem easy to overcome in order that underage
individuals are punished for the use of alcohol or drugs, peace
officers should not be rewarded for illegal procedures. He wishes
that the committee will not pass the bill out today in order to
address that issue. He noted that every person who has addressed
G.L.A.D. has indicated their primary concern in of probable cause
and that DMV can override the wishes of a court. He reminded the
committee members that it is their responsibility to uphold the
U.S. Constitution, as well as address the concerns of their
constituents.
Number 2233
CHAIRMAN KOTT asked whether Mr. Hyde is suggesting that the hearing
portion be completely eliminated and allow the remedy to be before
the superior court.
MR. HYDE replied yes. That is his ultimate desire. He indicated
that language could be added that would maintain the administrative
process as a review mechanism. However, when the courts determine
that an individual is not guilty, there should be no further
discussion or avenue for the DMV to comment. In addition, he noted
that there is no nexus for controlled substances, which are
illegal.
Number 2335
CHAIRMAN KOTT noted that after a determination from an
administrative hearing, an individual still has the ability to take
his or her case to superior court. Therefore, why not try to
remedy it at the administrative level thereby eliminating the
prevailing cost later on down the road?
Number 2360
MR. HYDE replied in many situations, that he knows of, the court
hearing occurred before the administrative process. Secondly, the
process of appealing to superior court after a decision requires a
$750 bond. Mr. Hyde said that these individuals who may not be
able to afford the fine pay more in order to receive justice. He
emphasized that this is after having a circuit court judge rule not
guilty or the charges have been dismissed. Also, when the appeal
process is attempted representation is necessary which is also very
expensive. He understood that in an administrative situation, an
individual is not entitled to a public defender. Therefore,
private counsel must be hired.
CHAIRMAN KOTT requested that Ms. Hensley come forward and review
the administrative hearing process.
Number 2455
JUANITA HENSLEY, Administrator, Director's Office, Division of
Motor Vehicles, Department of Administration, stated that the
administrative hearing process starts at the time the police
officer ...
TAPE 99-40, SIDE B
Number 0001
MS. HENSLEY continued, "...possession or consumption of alcohol
under Title 4." At that time, the person is provided a copy of the
notice of revocation which specifies all of the administrative
remedies to contest the fact that the DMV will revoke their license
on the eighth day following the receipt of the notice. The
individual has seven days from the day the notice is given to
request an administrative hearing. If the individual fails to
request an administrative hearing, that individual's license is
revoked on the eighth day for either 90 days, one year, or three
years. Ms. Hensley noted that the notice of revocation during the
issuance of the citation is a temporary drivers license for seven
days. If an administrative hearing is requested, the individual
receives an extension of that temporary license, which provides the
date and time of the hearing, the fact that it will be held
telephonically, the fact that it can occur even if the violation is
dismissed or the individual is found not guilty in court. She
noted that there is a different burden of proof on an
administrative hearing as opposed to a court charge.
MS. HENSLEY further informed the committee that the grounds are,
did the officer have probable cause to make the initial stop, did
the officer see or know that the person had consumed or possessed
alcohol or drugs, and did the person use a fraudulent driver's
license to enter an establishment to buy alcohol. The hearing
officer then takes the accused's side of the story. The accused
can request that the officer be present to contest the probable
cause. After the hearing, a decision regarding whether the officer
had grounds for the stop, or the individual did consume or possess
alcohol is made by the hearing officer at which point a decision is
rendered to either revoke the individual's drivers license or to
rescind the action. If the determination is to rescind the action,
the individual obtains a new drivers license from the DMV after
paying a duplicate fee. If the determination is to revoke the
individual's license, the individual can apply for a limited
license to allow for driving to and from employment. She noted
that the individual has the right to file for an appeal to the
superior court. If the superior court upholds the DMV's
revocation, the individual has the right to further appeal to the
supreme court.
CHAIRMAN KOTT commented that would hardly occur for a first
offense.
MS. HENSLEY replied the Chairman would be surprised. Currently,
there are cases in the supreme court. The supreme court has
provided the DMV direction on this issue and has limited the
discussion during an administrative hearing. She noted that very
few cases are lost in superior or supreme court.
Number 0192
CHAIRMAN KOTT asked Ms. Hensley whether a person cited under this
provision could apply directly to the superior court and circumvent
the administrative procedure. He thought he heard Mr. Hyde say
that in some cases the court cases have occurred before the
administrative hearing.
MS. HENSLEY replied the court cases to which Mr. Hyde referred to
were the violations. An individual that is issued a citation must
go before a district court judge, which has a different burden of
proof than an administrative hearing. That is the big difference.
CHAIRMAN KOTT indicated they are separate issues then.
Number 0237
REPRESENTATIVE ROKEBERG asked Ms. Hensley whether the hearing
officers inform the individuals that they have the right to apply
for a temporary license. Is it mandated or just a requirement?
MS. HENSLEY replied the officer is required - by law - to read the
notice to the individual at the time of issuance, which says they
have the right to an administrative hearing and that the temporary
license is a seven day permit to drive and they have to ask for a
hearing with those seven days.
Number 0276
REPRESENTATIVE ROKEBERG specified that he was referring to the
limited license for travel to and from employment. Does the
hearing officer have to inform the individuals that they have the
right to apply for the limited license?
MS. HENSLEY replied there is not a mandate requiring the hearing
officers to notify the individuals of their right to apply for a
limited license. However, that is the practice and there is a
follow-up with printed information detailing the restrictions and
application procedure for the limited license.
Number 0310
REPRESENTATIVE ROKEBERG said: "Mr. Chairman just to follow-up to
get this point straight. I mean, there's a piece of paper that
is...What if we're out of paper? My point is, is anybody that's
before the hearing officer, could he or could that person not be
informed he had a right to apply for a limited license?"
MS. HENSLEY stated that the individual is advised - at the time of
the hearing - of the ability to apply for a limited license.
REPRESENTATIVE ROKEBERG asked Ms. Hensley whether that is in
statute or regulation.
MS. HENSLEY replied it's in neither one. It is part of the hearing
officers' procedures as specified in their manual.
Number 0343
REPRESENTATIVE ROKEBERG asked Ms. Hensley how many people come
before a hearing and do not lose their license. He also inquired
as to how many people apply for and are granted a limited license.
MS. HENSLEY replied that she does not have those numbers, but
offered to provide that information to him later. She noted that
25 percent of individuals, minors and adults who have lost their
license for administrative proceedings, request an administrative
hearing to contest the DMV's revocation.
Number 0381
REPRESENTATIVE ROKEBERG asked Ms. Hensley whether there is any
indication on that notice that a person can apply for a limited
license.
MS. HENSLEY replied that the notice says a limited license can be
requested. She offered to provide a copy of the notice to the
members.
Number 0404
REPRESENTATIVE ROKEBERG referred to Section 5 of the proposed
committee substitute, and asked Ms. Hensley whether the revocation
for two years is the standard.
MS. HENSLEY replied the first offense is 90 days, the second
offense is 1 year, and the third offense is 3 years.
Number 0428
REPRESENTATIVE MURKOWSKI referred to Section 6 of the proposed
committee substitute, which provides for the review hearing, and
asked whether there is anything that could be added to what is
considered at the hearing in order to ensure a greater level of due
process.
Number 0473
MS. HENSLEY stated that there could be additions to the statutes
regarding what the hearing officer can hear.
Number 0485
REPRESENTATIVE MURKOWSKI understood Ms. Hensley's earlier statement
regarding the DMV's direction from the courts that the age of the
individual and the determination of probable cause are what can be
heard.
MS. HENSLEY said that was because the statute is limited to those
issues. In cases that went beyond what's in statute and looked at
other issues, the court came back and said the hearing officer can
only look at what is in statute.
Number 0514
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, clarified
that at the administrative hearing the burden of proof is
preponderance of evidence not probable cause. The hearing officer
has to decide that it's more likely than not - 51 percent - the
child was drinking and between the ages mention. The probable
cause is the standard that the police officers use in deciding to
take a license. Ms. Carpeneti informed the committee that the
department still opposes the nexus in the proposed committee
substitute because practically the only people whose licenses would
be taken away are minors who police officers see drinking or
holding a beer in a car. That is likely to be very few because
most kids are bright enough not to do that. Under the proposed
committee substitute, a minor who drinks at a party and then gets
into a car would not have his/her license revoked.
CHAIRMAN KOTT invited Mr. Cory Winchell to come back to the table
for closing comments.
REPRESENTATIVE ROKEBERG interjected and asked Mr. Winchell to
clarify Ms. Carpeneti's comments on a roaring drunk kid in a car.
MR. WINCHELL said, if that roaring drunk kid gets behind the wheel
of a car, he will get his license taken away. The attempt is to
curtail all of the administrative revocation hearings that are
occurring for possession issues. In addition, the due process for
an administrative hearing has been established by the supreme court
as the right to notice and the right to be heard by an impartial
officer, which are being met under the citation It is a
preponderance of the evidence hearing, therefore, due process is
being satisfied. It's a policy call on the part of the legislature
whether or not to raise the due process procedures to a superior
court level. He reiterated, under the proposed committee
substitute, a person has the right to be heard before a hearing
officer, and for all intents and purposes they do a good job.
Number 0689
REPRESENTATIVE ROKEBERG commented that one of the problems with
this law is the perception - on the part of the youth - of the
unfairness with regards to the nexus.
Number 0730
MR. WINCHELL said that he is not married to the language of the
nexus.
Number 0741
CHAIRMAN KOTT recognized the difficulty of the parameter and noted
that he is not married to the language of the nexus either.
Number 0777
REPRESENTATIVE GREEN understood that part of the problem is the
word "consumption" and it occurring in the vehicle. Is there a way
around that be going back to under the influence? he asked.
Number 0809
MR. WINCHELL replied yes language could be added that specifies if
an individual consumes alcohol and then enters and occupies a car,
that individual can have their license revoked.
Number 0846
REPRESENTATIVE GREEN commented that he doesn't want to punish an
individual for taking an intoxicated driver home. On the other
hand, without tight language, there would be problems.
Number 0870
MR. WINCHELL clarified that if the person has not possessed or
consumed alcohol, that person would not have his/her license
revoked. The issue is the intoxicated person in a vehicle who
would have his/her license revoked.
Number 0898
CHAIRMAN KOTT reminded the committee that in order for an officer
to stop a car there must be probable cause or some other violation,
at which point, the officer would see a person passed out in the
car or smell alcohol or whatever.
MR. WINCHELL said, "It's a hard policy call. I don't envy you."
Number 0925
MS. HENSLEY clarified that, if there is an inebriated person
between the age of 14 and 21 and drives, that person would be
charged as an adult for drunk driving.
CHAIRMAN KOTT said that, if an intoxicated minor is passed out in
the back seat, that minor would be cited for underage drinking.
MS. HENSLEY said that is true right now. Under the proposed
committee substitute, the officer would have to see the minor
consuming the alcohol not just passed out in the car.
CHAIRMAN KOTT said that the minor would still be subject to the
underage drinking law, although it may not fall under the "Use It,
Lose It" provision.
MS. HENSLEY replied yes.
Number 0982
REPRESENTATIVE CROFT stated, under the proposed committee
substitute, a parent would not be able to drive his/her child home,
without risking the loss of that child's license.
Number 1011
REPRESENTATIVE ROKEBERG inquired as to whether the
consumption-by-a-minor statute is clear enough to be adopted by
reference.
CHAIRMAN KOTT deferred the question to Ms. Carpeneti.
Number 1090
REPRESENTATIVE ROKEBERG asked whether there is an affirmative
defense for minor possession or consumption, if there is an adult
with the minor.
Number 1123
MS. CARPENETI believed that it is not against the law for a parent
to furnish alcohol to his/her child in the home. In addition, she
does not believe there is an affirmative defense for minor
consuming per se, if the alcohol is furnished by a parent or an
adult.
Number 1158
REPRESENTATIVE CROFT said: "So, they can provide it. It's
just--it's still illegal for their child to drink it."
MS. CARPENETI replied yes.
Number 1173
REPRESENTATIVE GREEN asked whether consuming alcohol outside of a
vehicle would be an excuse.
MS. CARPENETI replied it would take a person out of the "Use It,
Lose It" law.
REPRESENTATIVE GREEN noted that the person could operate a car
after consuming alcohol and he would be adjudicated under a
different law, but he would not necessarily lose his license.
MS. CARPENETI said, "That's correct."
Number 1234
REPRESENTATIVE ROKEBERG clarified that what is being addressed is
consumption prior to occupying the vehicle because once inside a
vehicle this kicks in.
REPRESENTATIVE GREEN asked whether that is the intent.
REPRESENTATIVE ROKEBERG replied it is, but that's not how the bill
is drafted.
Number 1276
CHAIRMAN KOTT stated that there is the language "occupying" and
"operating."
REPRESENTATIVE ROKEBERG replied he is referring to consumption
prior to having consumed alcohol and being in a vehicle.
CHAIRMAN KOTT said that a person who consumes alcohol prior to
entering a vehicle is subject to the "Use It, Lose It" law.
REPRESENTATIVE GREEN said no not if a person drinks alcohol before
getting into a vehicle.
Number 1302
REPRESENTATIVE KERTTULA asked Ms. Carpeneti whether she is correct
in saying, if an individual is drinking while intoxicated, the DWI
penalty is still in place to revoke the license. That is never
going to go away.
MS. CARPENETI replied yes.
CHAIRMAN KOTT stated he is talking about the passenger.
Number 1318
REPRESENTATIVE GREEN said: "But, we're saying if he operated a
vehicle and he consumed the stuff--the way it's written now--he got
wasted at a party and then went after him, he doesn't lose his
license because of this."
REPRESENTATIVE KERTTULA replied, if the individual operates a
vehicle, that individual would lose his/her license because of DWI
laws.
REPRESENTATIVE GREEN said what difference does it make whether a
person consumes alcohol before or after he's in a car.
Number 1365
CHAIRMAN KOTT clarified that the language - "and the possession or
consumption occurred while occupying a motor vehicle" - addresses
the issue of the the passengers, not the operators.
REPRESENTATIVE GREEN indicated the language needs an "or" in front
of "operator."
Number 1409
MS. CARPENETI recommended that the drafter make paragraphs out of
these for clarity.
REPRESENTATIVE ROKEBERG suggested inserting another paragraph,
which would use language such as, "consumption prior to occupancy
of the vehicle."
REPRESENTATIVE MURKOWSKI suggested the language, "prior to or while
occupying the vehicle."
CHAIRMAN KOTT said the language should send the message that if a
person is underage and has been drinking that person should not get
into a vehicle no matter who's driving. He noted that the bill has
come full circle. He wondered whether it would work under the
guise of adult supervision.
Number 1517
CHAIRMAN KOTT called for an at-ease at 3:05 p.m. and called the
meeting back to order at 3:15 p.m.
CHAIRMAN KOTT inquired as to the wishes of the committee members.
He noted that the bill has a further referral to the House floor.
He is out of suggestions other than to tie the act of drinking in
or out of the vehicle to the "Use It, Lose It" law, which he is not
comfortable with.
Number 1628
REPRESENTATIVE ROKEBERG moved to report CSHB 151(JUD) [Version
LS0492\X, Ford, 4/23/99] out of committee with individual
recommendations and the attached zero fiscal note. There being no
objection, it was so moved from the House Judiciary Standing
Committee.
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