Legislature(2005 - 2006)
03/21/2005 02:29 PM House JUD
| Audio | Topic |
|---|---|
| Start | |
| HB136 | |
| HB116 | |
| HB94 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 136 - DRUNK DRIVING TREATMENT PROGRAM CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 136, "An Act restricting the authority of a court to suspend execution of a sentence or grant probation in prosecutions for driving while under the influence and prosecutions for refusal to submit to a chemical test; and allowing a court to suspend up to 75 percent of the minimum fines required for driving while under the influence and for refusal to submit to a chemical test if the defendant successfully completes a court-ordered treatment program." 2:30:08 PM HEATHER NOBREGA, Staff to Representative Norman Rokeberg, Alaska State Legislature, sponsor, relayed on behalf of Representative Rokeberg that HB 136 makes three changes. One change will require courts to impose the statutory minimum fines for driving under the influence (DUI) convictions; currently, because courts are not statutorily required to impose those fines, some are suspending the fines. Another change expands the provision regarding court ordered treatment programs so that it also applies to felony DUI cases. And the third change increases - from 50 percent to 75 percent - the percentage of a fine that can be waived if a person successfully completes a court ordered treatment program. With regard to a question about how the minimum fine for a DUI is collected if the person doesn't have the means to pay it, she said that the collection of fines is handled by the Department of Law (DOL), and offered her understanding that the DOL simply garnishes a person's permanent fund dividend (PFD) until the fine is paid off. REPRESENTATIVE GARA expressed a concern regarding the existing fines, which are listed on page 2 and 3 of the bill and range between $3000 and $7000 for repeat misdemeanor DUI convictions and $10,000 for felony DUI convictions. He said he wonders what kind of message is sent being sent in instances where the person cannot afford such a fine, where the person has to choose between paying the fine and paying for necessities. He offered his understanding that once a person becomes a felon, he/she isn't entitled to a PFD. He suggested that the bill be changed to allow someone to forgo paying the fine if he/she can prove that paying the fine would result in causing [financial] harm to his/her family. 2:34:37 PM MS. NOBREGA said she understands Representative Gara's concern; however, the legislature put a lot of thought into raising the aforementioned minimum fines to what they currently are today. She said it's a policy call of this legislature as to whether it wants to provide for something different. It is Representative Rokeberg's intent, she relayed, for the courts to abide by what is currently provided for in statute regarding minimum DUI fines. REPRESENTATIVE GARA questioned why it is more important for a single parent, for example, to give money to the state rather than buy food for his/her children. REPRESENTATIVE DAHLSTROM said that although she is sympathetic to the struggles that a single parent goes through, there are natural consequences to one's choices, such as choosing to go out and get drunk and then driving. She said she is also sympathetic to those who've been victims of alcohol-related crimes, however, and offered her belief that the money that would have gone towards paying a DUI fine wouldn't have been used to help the family anyway, and that the felony DUI fine of $10,000 could be the wakeup call that someone needs. The current schedule of fines can also send a message to the children of parents who are convicted of DUI, the message that they need to make different choices with regard to alcohol consumption. She said that she is supportive of the current fine schedule and that she is disappointed that the courts haven't been enforcing those fines. CHAIR McGUIRE asked whether a Suspended Imposition Of Sentence (SIS) can include a suspension of the fines. REPRESENTATIVE GARA noted that an SIS would only be granted for a first offense and so wouldn't be granted to a person convicted of a repeat DUI offense. He said he agrees with Representative Dahlstrom's comments, but posited that the children of a person convicted of a repeat DUI offense will only be noticing how long their parent is missing from the home while serving the mandatory minimum jail sentence. 2:39:56 PM REPRESENTATIVE GARA reiterated his belief that there should be some sort of "out" [for those in dire financial straits who have families to support]; for example, a payment scheduled could be established. CHAIR McGUIRE said she doesn't see that the bill specifies the terms of any possible payment agreement that could be arranged. She asked whether the judge has the discretion to set up a payment agreement so as not to cause unbearable hardship on a family. MS. NOBREGA offered her understanding that such can be done, either through the Alaska Court System (ACS) or the DOL. With regard to the issue of SIS, she noted that there is a chart in members' packets containing information garnered from local papers about SISs granted in Juneau and Nome. Referring to one such SIS as an example, she pointed out that the person didn't have to pay a single dollar of the mandatory minimum $10,000 fine and had two years of his/her mandatory minimum sentence suspended. She relayed that almost everyone convicted of a DUI in Juneau had portions of his/her sentence suspended and most, if not all, of his/her fines suspended. REPRESENTATIVE GARA offered his belief, however, that if the bill says that a person has to pay the fine, even if he/she is unable to do so, then the judge will have the authority to put that person in jail for the remainder of his/her suspended sentence. He opined that the committee ought to be able to achieve the goal of having as much of the money imposed for fines paid as possible while still statutorily allowing the judge to set up a payment schedule. If the ability to set up a payment schedule is already provided for in statute, he remarked, then his concern is satisfied, but if such isn't already provided for, then he would like to add such a provision to HB 136. 2:44:20 PM CHAIR McGUIRE asked Mr. Wooliver to comment regarding Representative Gara's concern. DOUG WOOLIVER, Administrative Attorney, Administrative Staff, Office of the Administrative Director, Alaska Court System (ACS), said that the only provisions of HB 136 he was prepared to speak on were the provisions that serve as incentives for people to participate in therapeutic court programs, which the ACS supports because it thinks they work and save both money and lives; those provisions include the one that allows for a reduction in fines [when a person successfully completes a court ordered treatment program] and the one that allows those convicted of felony DUI to participate in therapeutic court programs. He did relay, however, that payment schedules are routinely set up, but they vary between judges, and that judges also disagree amongst themselves regarding the extent to which mandatory minimum fines can be suspended. REPRESENTATIVE GARA asked whether, if HB 136 is adopted, judges would retain the discretion to set up a payment schedule. MR. WOOLIVER said yes. REPRESENTATIVE GARA asked whether he should worry that probation time might be turned into jail time if a person isn't able to pay the fine on schedule. MR. WOOLIVER said he didn't know, and suggested that others could perhaps better address that issue. 2:46:58 PM REPRESENTATIVE GARA referred to the Alaska Court of Appeals opinion in Curtis V. State, and offered his understanding that it said a person doesn't have to pay the minimum fine. He asked whether there were any standards, such as demonstrating that one doesn't have the ability to pay the fine, that came with that opinion. MR. WOOLIVER offered his understanding that the Curtis decision basically said that mandatory minimum jail time may not be suspended and noted that there is nothing in statute regarding a requirement to pay a mandatory minimum fine. He said he is not sure whether judges are interpreting that opinion differently or whether judges are simply disagreeing with regard to whether "it's" appropriate. 2:48:03 PM CHAIR McGUIRE asked Mr. Wanamaker to comment on Representative Gara's concern. JAMES N. WANAMAKER, Director, Alaska Center for Therapeutic Justice, Partners for Progress, Inc. (PFP), speaking as a former judge from Anchorage's Third Judicial District, said that the practice in Anchorage has been for the judge to set a due date by which the fine must be paid - for example, by the end of a year; then, if the fine is not paid by that due date, it becomes a civil matter that is pursued by the DOL just like any other civil judgment. REPRESENTATIVE GARA recapped what current law allows for with regard to fines. He asked whether the court's jurisdiction on a misdemeanor case lasts for more than a year. 2:52:22 PM MR. WANAMAKER indicated that although a judge could set up a due date that goes beyond a year, that's not been the prevailing practice. REPRESENTATIVE GARA relayed that that offers him some comfort. He then asked whether the bill will allow judges to use a payment plan approach, for example, paying $100 a month until the entire fine is paid. MR. WANAMAKER offered that judges don't generally set up a specific payment plan because they have so many cases and doing so would involve too many details; typically judges just give a date by which the fine in total is due. He said he has never seen a petition to revoke probation for failure to pay a fine. REPRESENTATIVE GARA asked for Mr. Wanamaker's thoughts regarding requiring that all mandatory minimum fines be paid. MR. WANAMAKER characterized that as a housekeeping matter, adding that he'd always taken the view that the mandatory minimum fines were the minimum that could be imposed and that they had to be paid. He offered his belief that there are just a few judges that are suspending the fines below the statutory minimum amount. 2:55:10 PM MR. WANAMAKER, speaking on behalf of the Alaska Center for Therapeutic Justice, offered his understanding that Sections 3 and 6 would extend the statutes regarding therapeutic courts so that they would apply to those convicted of felony DUIs. He opined that the single best way to prevent the horror caused by DUI-related accidents is to get defendants into lasting sobriety, which has been proven to happen via the therapeutic court model. He noted that therapeutic courts are cost effective, and that the National Highway Traffic Safety Administration (NHTSA) is emphasizing the funding of therapeutic courts. He said he hopes the bill will be reported from committee with "do pass" recommendations. 2:57:19 PM CHAIR McGUIRE mentioned that she's seen a summary produced by the "Scaife Family Foundation" listing the economic benefits of drug treatment. MR. WANAMAKER mentioned that he's seen other studies that provide similar information. REPRESENTATIVE GARA asked whether passage of the bill will require judges to send someone to jail for failure to pay the mandatory minimum fine. MR. WANAMAKER said no, adding that the judge doesn't have the authority to send someone to jail until a petition to revoke probation has been filed by the district attorney, and such isn't done, since failure to pay a fine simply becomes a civil matter. 2:59:48 PM WENDY HAMILTON, Coordinator, Juneau Therapeutic Court, characterized all three of the aspects of HB 136 that Ms. Nobrega spoke of as housekeeping measures. She opined that extending the provision regarding therapeutic courts so that it applies to felony DUI offenders is a much needed change, noted that the Juneau Therapeutic Court will be handling both misdemeanor and felony DUI offenses, and offered her belief that felony DUI offenders are just a higher level of risk. With regard to the bill's proposal to increase the amount of a fine that may be waived if a person convicted of a DUI successfully completes court ordered treatment, she posited that this proposed change goes hand in hand with the extension of therapeutic courts to felony DUI offenders. Successfully completing court ordered treatment requires a lot of hard work, she noted, and so there should be incentives for offenders to chose that option. MS. HAMILTON, with regard to the concern raised by Representative Gara, said that in her experience, having worked in the field of felony probation/parole for two and a half years, no one has ever been sent back to jail for failure to pay a fine; [the state] has always worked out a payment plan that an offender is amenable to, and an offender is even allowed to miss a payment or two before being called by his/her probation/parole officer. She, too, mentioned that unpaid fines are eventually turned over to the DOL for collection, even if the offender is already off probation/parole. "Fines are one of the 'bites' that you can have, jail and fines, and that's why that third piece is very much needed for the second piece to work," she concluded. 3:02:27 PM MATT FELIX, Executive Director, Juneau Affiliate, National Council on Alcoholism and Drug Dependence, Inc. (NCADD), relayed that the NCADD does a lot of drug and alcohol treatment prevention and is the recipient of the federal money that is used to administer the Juneau Therapeutic Court in conjunction with the ACS. He, too, characterized the changes proposed by HB 136 as cleanup language that is needed, and suggested that therapeutic courts "fill in the gaps" and make the courts work better by offering "a carrot" approach in addition to the punitive approach. With regard to Representative Gara's concerns, he said that the NCADD's experience has been that a lot of an offender's fine ends up being waived if he/she successfully completes court ordered treatment, and characterized this as part of the carrot approach. Additionally, if a person successfully completes court ordered treatment, he/she will get credit for treatment fees, credit for therapy, and credit for a number of other things he/she is ordered to do, and the judge has the discretion to apply that credit to the offender's fine; therefore, a person could end up paying only one-fourth of a $10,000 fine, for example. CHAIR McGUIRE surmised that the NCADD is seeing the [therapeutic court process] work. MR. FELIX concurred, adding that the NHTSA is now funding therapeutic courts because they are one of the few things that do work to stop DUI fatalities. The reason why so much federal money is pouring into Alaska is because Alaska has the worst DUI rate per capita and the worst DUI fatality rate of any state; over the years, and still currently, 50 percent of Alaska's auto fatalities have been DUI related, and up to one third of those fatalities were the result of multiple DUI [situations]. CHAIR McGUIRE asked whether interlock devices are making an impact on that rate. MR. FELIX indicated that although [the courts] are now authorized to make use of interlock devices in sentencing, they are not being used in Alaska yet, though they have been used successfully in other states as part of the sentencing structure and as part of the therapeutic court model. 3:08:11 PM CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on HB 136. REPRESENTATIVE DAHLSTROM moved to report HB 136 out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE GARA objected, and asked that the committee consider adopting a letter of intent so as to ensure that the bill won't be turned into a means by which to impose the remaining part of a person's sentence because of a failure to pay the mandatory minimum fine. CHAIR McGUIRE said she wouldn't have a problem supporting such a letter of intent but would first want to see in it writing. 3:10:06 PM REPRESENTATIVE GARA asked that the committee delay moving the bill until later in the meeting in order to give him an opportunity to craft the letter of intent. CHAIR McGUIRE agreed to do so. REPRESENTATIVE ANDERSON asked that the letter of intent include language indicating that the committee recognizes that therapeutic courts, treatment programs, and interlock devices are valuable tools for rehabilitation. REPRESENTATIVE GARA agreed to do so. REPRESENTATIVE DAHLSTROM withdrew the motion to report HB 136 from committee. CHAIR McGUIRE relayed that HB 136 would be set aside and heard again later in the meeting when the aforementioned letter of intent is available for members to look at. HB 136 - DRUNK DRIVING TREATMENT PROGRAM 3:28:24 PM CHAIR McGUIRE announced that the committee would return to the hearing on HOUSE BILL NO. 136, "An Act restricting the authority of a court to suspend execution of a sentence or grant probation in prosecutions for driving while under the influence and prosecutions for refusal to submit to a chemical test; and allowing a court to suspend up to 75 percent of the minimum fines required for driving while under the influence and for refusal to submit to a chemical test if the defendant successfully completes a court-ordered treatment program." CHAIR McGUIRE indicated that a proposed letter of intent has been distributed. REPRESENTATIVE GARA made a motion to adopt the proposed letter of intent, which, with handwritten corrections, read [original punctuation provided]: It is the intention of the legislature that the Court System and Department of Law continue their practice as regards collection of unpaid fines for Driving Under the Influence of Alcohol. That practice is to pursue the payment of unpaid fines through a civil action by the Department of Law, and not through revocing [sic] probation. It is also the intent of the legislature to encourage the use of fines, wellness courts, and interlocking devices where appropriate as tools for addressing these crimes, and those who commit them. CHAIR McGUIRE suggested that the letter of intent be adopted after the bill is reported from committee. REPRESENTATIVE DAHLSTROM moved to report HB 136 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HB 136 was reported from the House Judiciary Standing Committee. REPRESENTATIVE GARA again made the motion to adopt the proposed letter of intent. There being no objection, the letter of intent was adopted and forwarded with HB 136.
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