Legislature(2003 - 2004)
02/02/2004 01:10 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 342 - INCREASE DRIVING UNDER INFLUENCE PENALTY Number 1531 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 342, "An Act relating to driving while intoxicated; and providing for an effective date." Number 1517 REPRESENTATIVE CARL GATTO, Alaska State Legislature, sponsor of HB 342, explained that [through this legislation] he hopes to "delineate" the person who drinks and drives. Representative Gatto related that about 50 percent of the crashes involving fatalities also involve [an individual with] a blood alcohol concentration (BAC) of 0.15 and greater. Furthermore, he related that most accidents are single-vehicle crashes and if an individual has a BAC of 0.15 or higher, that individual is 385 times more likely to be involved in a single vehicle crash. He pointed out that often, these single vehicles have additional passengers. Representative Gatto highlighted that there is no fiscal note for HB 342. However, if there are serious injuries as a result of these accidents, one must realize that millions of dollars of medical and life costs are incurred. Therefore, the increase in fines proposed by HB 342 may save the state money. REPRESENTATIVE HOLM asked if there is some methodology other than using a "breathalyzer" to determine one's BAC. He related his understanding that a "blood draw" would provide a more reliable BAC than a "breathalyzer." [Note to the reader: Since July 2003, law enforcement agencies in Alaska have been using the DataMaster cdm (compact datamaster); this and similar units are often referred to by the generic name of "breathalyzer."] REPRESENTATIVE GATTO posited that when there are accidents, a blood draw is usually done, which would result in an exact BAC. However, he stressed that [DataMaster] tests are fairly accurate when compared to blood draws. REPRESENTATIVE HOLM related that he was fairly familiar with a recent case in Fairbanks in which the breathalyzer test result was quite a bit off. Therefore, he expressed the need to be sure to gauge [the BAC] in the most reliable way possible. REPRESENTATIVE GATTO said doing so made sense to him. Number 1268 CODY RICE, Staff to Representative Carl Gatto, Alaska State Legislature, sponsor, informed the committee that as a former employee of Community Services Patrol in Anchorage, he has had the opportunity to administer a [DataMaster] test and compare it with a blood draw from the same individual. Although sometimes there was a slight discrepancy, when [DataMasters] are calibrated regularly their readings are very accurate. In response to Chair McGuire, Mr. Rice related his experience that the [DataMaster] test result is lower than the blood draw result. CHAIR McGUIRE said that is important because this is an increased penalty for those who have a BAC level that is higher. Therefore, if there is an error in the test that would lower the individual's BAC level and the subsequent penalty, then she said she wasn't as concerned about any possible discrepancy. REPRESENTATIVE GARA asked if the reference to the testing a person's breath is referring to use of a [DataMaster] or use of a portable breath tester (PBT), [the results of] which even cause law enforcement concern. He further asked if the fine increase would be based on the PBT too. MR. RICE replied yes, adding that although he believes "law enforcement would tend to disagree," he can't speak for law enforcement because "that is the case and it is still legal for them to use [PBTs]." REPRESENTATIVE GARA noted that the courts rely on [DataMaster] results, which he agreed can be very accurate when calibrated. Representative Gara said he didn't worry about requiring that the [BAC level] be determined by a blood draw because that would cost the state; moreover, defendants do have the right to request a blood draw when given a [DataMaster] test. Representative Gara said he didn't see why the PBT would be allowed since law enforcement doesn't rely on it for a conviction. In reading the language of the legislation itself, he said he has difficulty determining exactly what the increase in fines would be. Number 1037 MR. RICE specified that the sole purpose of HB 342 is to double fines associated with [driving under the influence (DUI)] convictions. On page 4, paragraph (1) specifies that if the trier of fact determines that the BAC was 0.16 to 0.24, then the fines will be doubled. Paragraph (2) on page 4 specifies that if the BAC was 0.24 or greater, the fines will be quadrupled. In response to Representative Samuels, Mr. Rice noted his agreement that this legislation merely means that if one's BAC is higher, that individual pays more. REPRESENTATIVE GARA, in response to Representative Samuels, explained that law enforcement carries around a PBT and if law enforcement suspects the individual is drunk, then a [DataMaster] test is also administered. He noted that the [DataMaster] results are relied upon for a conviction. CHAIR McGUIRE suggested that the above distinction should be clarified. REPRESENTATIVE GATTO noted that many people attempt to delay testing in the hope that their BAC levels will drop. CHAIR McGUIRE requested that a law enforcement representative be available at the bill's next hearing to explain how it would work in real life. MR. RICE pointed out that HB 342 doesn't make any changes with regard to the legality of using PBTs, [DataMasters], or blood draws. The legislation only changes the fines. Number 0858 REPRESENTATIVE OGG indicated the need to clarify the term "chemical test" on page 4, line 2. Also on page 4, line 4 refers to "0.16", whereas other language in the legislation refers to "greater than 0.15", which suggests inconsistency. With regard to the fines and sentencing provisions, Representative Ogg opined that there needs to be some fine- tuning between Section 1, subsection (b)(1), and Section 2, subsection (n)(1), which currently appear to conflict with each other. CHAIR McGUIRE said that one could envision a case in which a judge attempts to thwart the intent behind the legislation and deliberately sets the fine lower and then doubles that. REPRESENTATIVE GATTO offered his hope that some discretion is given to the judges. He offered his belief that all the legislation does is double [the fines]. REPRESENTATIVE OGG reiterated that there should still be more clarity regarding Sections 1 and 2. CHAIR McGUIRE suggested that an opinion from the drafter would be appropriate on this matter. She noted her agreement with Representative Gatto that some judicial discretion should be preserved. REPRESENTATIVE GARA said that he certainly supports increasing the fine for those with higher BAC levels, but he wasn't sure that there is a mandatory minimum for a misdemeanor DUI charge. He remarked that quadrupling a $10,000 fine seems to be excessive. REPRESENTATIVE GATTO pointed out that it takes an excessive amount of exposure to previous fines in order to reach that [$40,000] fine [and thus these would be] repeat, chronic offenders. REPRESENTATIVE GARA said he agreed with the concept of making the fines stiffer in order to reflect the society's interest in this matter. However, he requested that Representative Gatto consider whether the DUI fine should be increased from $10,000 to $40,000. He mentioned that it's a small minority of people who are repeat offenders. He posed a situation in which [a repeat offender] doesn't understand that he or she needs alcohol treatment until the second, third, or fourth DUI, and by increasing the fine to $40,000, the individual will never go to alcohol treatment. Therefore, he said he wasn't sure that society was being made better by increasing a fine that will probably never be paid and, if it was paid, it might come from funds that would've been used to attend a treatment facility. REPRESENTATIVE GATTO suggested that some people could be deterred when they realize there is a considerable penalty attached to a repeat DUI conviction, though he acknowledged that there are simply people who don't care, and hence raising the fines simply won't reach those people. Number 0274 REPRESENTATIVE ANDERSON acknowledged the difficulty in this matter and noted his support in limiting DUI incidents. He highlighted the importance of looking to other states with regard to how many states have a tiered fine system similar to that proposed in HB 342. Representative Anderson indicated his agreement with Representative Gara in regard to the notion that there needs to be a balance between the penalties and the group of individuals who will face the penalties. He mentioned the need to encourage proactive measures as well. Although Representative Anderson said he understands MADD's punitive position, he feels that sometimes MADD doesn't look at alternative measures, which are also helpful to review. REPRESENTATIVE GATTO informed the committee that 31 states plus Washington, D.C., and American Samoa have legislation [that increases the fines for DUIs]. TAPE 04-10, SIDE A Number 0126 REPRESENTATIVE HOLM recalled a newspaper article in which a gentleman was picked up at a bar for sleeping in his car. Representative Holm noted his agreement with Representative Anderson in that one must look at things with respect to the damage to the person committing [the crime] as well as the threat to society. He said that he has never understood how someone warming up his or her car could be considered driving, especially in Alaska's cold climate. Representative Holm noted his appreciation of Representative Gatto's idea that there should be consequences for one's actions, adding that too often the legislature legislates such that people don't pay the consequences for their actions. Number 0285 CINDY CASHEN, Executive Director, Juneau Chapter, Mothers Against Drunk Driving (MADD), began by informing the committee that today she is representing the MADD chapters from Anchorage, Fairbanks, Matanuska-Susitna ("Mat-Su") valley, and Juneau. She noted that she is also a victim of drunk driving. Ms. Cashen announced that MADD supports HB 342. She mentioned that MADD views [the legislature] as being more punitive. She pointed out, however, that the proponents of treatment claim that MADD is punitive, while the proponents of jail time claim that MADD is treatment friendly. This legislation is just one part of the puzzle, she remarked. MS. CASHEN said that any legislation with a fiscal note isn't going to pass this session, and therefore MADD can't request that a treatment provision be added to HB 342. Fortunately, most of the treatment agencies in Alaska and Washington use a sliding scale; thus, if an individual is charged with fines, he or she won't be prevented from treatment. She explained that MADD supports HB 342 because it has seen so much damage from high risk and chronic drunk drivers. In order to deal with the aforementioned, the state must have a practical operational definition based on objective measures growing out of the drunk- driving enforcement and criminal justice processes. She stressed that the definition can't be left to the screening process that involves subjective elements such as self-reports and professional assessments, even when provided by licensed alcohol treatment specialists. The sanctions need to be in the courtroom. Number 0419 CHAIR McGUIRE recalled HB 4, legislation from the Twenty-Second Alaska State Legislature, that at one point tied funding of wellness courts to the newly imposed fines. Chair McGuire said that there is no question that the wellness courts are working, and therefore she asked whether MADD would support tying the newly generated funding from HB 342 to support wellness courts. MS. CASHEN replied yes and noted that MADD was on record as supporting that part of HB 4. Furthermore, MADD has also gone on record in support of the wellness court and therapeutic court legislation. She said that MADD has seen the success of [wellness and therapeutic courts] in other states as well as in Alaska. She informed the committee that she was the [first] wellness court case manager in Juneau and thus she has witnessed its success when administered properly and with a sufficient amount of funds. REPRESENTATIVE GARA surmised that the average person on the street would agree that the fines for DUI and repeat DUIs should be increased. However, at some point he wondered when the increases should stop. Representative Gara announced his support for increasing the misdemeanor fines and adding some to the felony fines. He pointed out that in Alaska, $40,000 is two years worth of income for some people, and suggested that he is uncomfortable with that high a fine. MS. CASHEN recalled that about three years ago, when she started with MADD, Alaska was number one in the nation for the number of drunk driving fatalities per capita. Since that time, three new chapters of MADD have formed, and the focus [of all the Alaska chapters] is education. Because of groups such as MADD and legislation such as HB 4, Alaska now ranks 26th [in the number of drunk driving fatalities per capita]. She highlighted that the aforementioned change has occurred over the last three years. MS. CASHEN informed the committee that she is a recovering alcoholic with over seven-and-a-half years of sobriety. In order for an alcoholic who is also a chronic drunk driver to finally realize he or she has an issue, that person has to reach the bottom, which is at a different spot for each individual. She related that many of the alcoholics with which she has spoken have said that they reached the bottom due to financial sanctions such as those proposed today. REPRESENTATIVE GARA agreed that reaching the bottom is personal, as is the appropriate sentence for an individual person. He suggested that a $40,000 fine against someone who makes $90,000 a year makes more sense than a $40,000 fine on someone who makes $10,000 a year and has a family to care for. Representative Gara opined that justice should be individualized. He pointed out that MADD has done a good job convincing people that sentences have been too light in the past. He suggested that perhaps the fines don't need to be reviewed [and increased] so severely if the jail time has increased, which might bring someone to the bottom more quickly than a $40,000 fine. MS. CASHEN said that it has been some time since there was an increase in the jail time due to the cost the state's correctional system. She explained that MADD is trying to look at a comprehensive program for the high-risk driver, and what is being reviewed is sanctions, which serve as a deterrent. If [fines] deter someone from drinking and driving and killing someone, then the state will save hundreds of thousands of dollars. MS. CASHEN, in response to Representative Anderson, reiterated her belief that fines will deter individuals from driving drunk. Number 1019 CHAIR McGUIRE mentioned that even with other sections of the criminal code, the deterrent argument is always raised, but another aspect of sentencing is that it is also punitive. She remarked that she believes the suggestion of a sliding scale is a good one and has been done in other states. REPRESENTATIVE GRUENBERG opined that the problem of drunk driving will never cease. This legislation is one, but not the only, approach to solving this problem. Although the criminal system is used as a means of enforcement and it offers some recompense to society, with the civil system there's a lower standard of proof and the injured victim receives recompense. Representative Gruenberg recommended that one should consider various ways of solving the problem [in order to get to] the best solution. Number 1178 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration (DOA), related that public defenders recognize that DUI is a serious problem in Alaska. She acknowledged all the efforts by the legislature to make some changes in this area. She pointed out that the statutes in this legislation have been changed numerous times over the past few years. Currently, a first-time offender receives a mandatory jail sentence of three days and a mandatory minimum fine of $1,500 and the individual's license is revoked for 90 days. Furthermore, those in prison face a surcharge, which can't be higher than $10,000, for the cost of imprisonment. Moreover, there is a conviction surcharge of $75 and the individual may very well lose his/her permanent fund dividend. The individual will have to do some alcohol treatment. This particular legislation raises some concerns because it will likely cause there to be more trials if people are disputing the BAC levels. Page 4 of the legislation says that the [BAC] level will be determined by the trier of fact. In some cases, the BAC level won't be addressed if it's over .08 because the higher level may not matter and the issue may then be with regard to whether the individual is driving or not. Therefore, she predicted that there would be more effort put into establishing or contesting the BAC level when an individual is in the "fringe" area. MS. WILSON remarked that there is a possibility that this legislation will be challenged on an equal protection basis. For example, if it's a second misdemeanor offense, the current mandatory minimum fine is $3,000 and quadrupling that would result in a mandatory fine of $12,000. The amount of $12,000 is over the maximum fine allowable for a class A misdemeanor and thus the convicted individual will be pulled out of the class in which he or she is convicted and be treated differently than others in that class of offense. MS. WILSON turned to the benefits of putting money toward treatment versus imposing more penalties. With all the recent changes related to DUIs, she suggested that it would be helpful to wait and see what the benefits would be before drastically raising fines. She reminded the committee that the PDA basically represent the poor. When the fines are doubled or quadrupled in an offense that is already experiencing heightened penalties, people may not seek treatment because of a lack of funds. Ms. Wilson suggested that perhaps the committee could review making more incentives for people to obtain treatment rather than imposing more penalties. CHAIR McGUIRE reiterated her earlier comments regarding using some of the funds from fines to fund wellness courts. Number 1433 REPRESENTATIVE SAMUELS remarked that he believes that one wouldn't see the same fatalities when the BAC is .08 versus when the BAC is .28. He acknowledged that he didn't know whether fining someone $40,000 would help. However, he expressed concern that there are still those individuals who have been in rehabilitation six times and jail didn't work. REPRESENTATIVE GARA agreed, adding that that is why he mentioned individualized justice points. Representative Gara asked if Ms. Wilson would be able to provide the committee with a summary of the changes in the fines over the last five years. MS. WILSON agreed to do so. [HB 342 was held over.]
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