Legislature(1995 - 1996)

04/12/1995 01:17 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 HB 255 - NEGLIGENT HOMICIDE BY AUTOMOBILE                                   
 REPRESENTATIVE SCOTT OGAN, sponsor of HB 255, stated this bill is             
 an act that creates a crime of negligent vehicular homicide.  The             
 bill is designed to fill an existing gap in Alaska's criminal code.           
 Representative Ogan said, "Unfortunately, it has taken the several            
 lives to illustrate the need for this legislation."                           
 REPRESENTATIVE OGAN said that under current Alaska law a person who           
 commits a traffic infraction, such as passing in a no-passing zone,           
 or running a red light, and is not under the influence of some                
 drug, alcohol, or isn't acting in an extremely negligent way like             
 running red lights at a high rate of speed...at this point, if they           
 run a red light and kill someone, they get a traffic ticket.                  
 Representative Ogan said he didn't feel this was appropriate.  He             
 said his dad told him, when he was growing up, that when he got               
 behind the wheel of a car it was a 2-ton missile.  He stated that             
 a car is a potential deadly weapon and when there is a disregard              
 for traffic laws, and when it results in a death, he feels that               
 something more than a $50 fine, or a minimal slap on the wrist, is            
 more appropriate.  Representative Ogan asked for any questions the            
 committee might have.                                                         
 CHAIRMAN PORTER stated there were two people on teleconference and            
 three people in the audience to testify.  He asked if there were              
 any questions of the sponsor.                                                 
 REPRESENTATIVE CON BUNDE noted he did not find a fiscal note and              
 asked if that was an oversight.                                               
 Number 085                                                                    
 REPRESENTATIVE OGAN answered that there was an assumption it came             
 from another committee, but a fiscal note was requested and he                
 anticipates receiving it shortly.                                             
 CHAIRMAN PORTER asked if there was someone from the Department of             
 Law who could shed some light on that.                                        
 CHAIRMAN PORTER asked for Mr. Mark Campbell, on teleconference in             
 Mat-Su, to testify.                                                           
 MARK CAMPBELL via teleconference in Mat-Su, testified in support of           
 this bill and asked committee members to support it as well.  He              
 stated his reason for supporting HB 255 is through personal                   
 experience of recently losing his 19-year-old son through a                   
 negligent driver.  Mr. Campbell said his son's friend and four                
 other teens were injured.  He stated that it was his experience               
 that just a simple traffic violation, a maximum of a $300 fine, and           
 ten minutes in traffic court sends an entirely wrong message to the           
 community and to other teens.  Mr. Campbell said, "In this case the           
 offender was an 18-year-old driver."  He said he and his wife                 
 regret there is not more in state law that can be done.                       
 MR. CAMPBELL said in working with the District Attorney (DA) and              
 the troopers, he and his wife were surprised there is nothing                 
 beyond just traffic court.  He related he and his wife are not                
 suing the young man.  They don't desire that his life should be               
 ruined.  It was negligence on his part and they wish that he had              
 acted more responsibly, but that was not the case.  Mr. Campbell              
 just regretted there was not at least an opportunity for his                  
 license to be taken.  He said he saw the same young man just a                
 month later as the young man sped through an intersection, which              
 caught he and his wife's attention.  He was surprised to see the              
 same young man and he got a hold of him and spoke to him about it,            
 and spoke to his parents about it.  He said he would just like to             
 see that there is more (indisc.) or a law which gives more                    
 incentive in a situation such as this.  Mr. Campbell said the                 
 person who had caused the accident was just graduating and he                 
 thinks it sends an entirely wrong message to all high school kids             
 that there are no real consequences for that type of negligence.              
 Mr. Campbell stated, "In our case, it was basically a $300 fine and           
 ten minutes in traffic court, and that's for two deaths and four              
 injuries."  He went on to say he would like to see new legislation            
 that would do more and offer more in this case.                               
 Number 200                                                                    
 REPRESENTATIVE AL VEZEY asked Mr. Campbell why he thinks the state            
 should take action when he declined to sue this individual in                 
 court.  He said it seems a little contradictory there.                        
 MR. CAMPBELL replied he simply thought there should be a loss of              
 license for a period of time, perhaps just to put it in a more                
 serious situation, to face up to the responsibility of what can be            
 done.  He said, "I understand there is civil action you can take.             
 The reality of that is simply that you would spend your time and              
 energies in a situation where, when you lose your 19-year-old son,            
 or, in our case, I'm not limiting it to that.  I'm sure the pain is           
 the same for anybody who has lost a loved one due to an accident              
 like this.  Their pain would be the same."  Mr. Campbell went on to           
 say, "Pursuing a civil matter, you don't have the opportunity to              
 put it to rest, to lay it aside."  He stated he and his wife did              
 not want to live their lives hounding and pursuing maybe a civil              
 judgment.  He pointed out you would have to track this young man              
 for the rest of his life, and they chose not to do that.  He said             
 they did not want their lives to become embittered or unresolved in           
 this matter.  They did not want his life to be that way as well;              
 however, he thinks there is still too little that can be done.                
 Number 245                                                                    
 REPRESENTATIVE VEZEY said he believes Mr. Campbell's testimony was            
 that he thought it was be appropriate in cases of this nature, if             
 an individual were to lose their license.  He asked if Mr. Campbell           
 had not testified to that effect.                                             
 MR. CAMPBELL answered, "I certainly think there should be something           
 that, when you cause a death, and it is negligence on your part, I            
 think that should be an absolute first thing that happens."  He               
 said in their situation, they certainly saw the message being sent            
 to so many other teenagers there is no action being taken.                    
 REPRESENTATIVE VEZEY said the reason he asked that question is                
 there is not a provision in this bill for revocation of license.              
 There is no change in that regard.  He pointed out this bill                  
 provides for making negligent vehicle homicide a misdemeanor, which           
 carries jail time, but does not carry the revocation of driving               
 license privileges.                                                           
 MR. CAMPBELL replied, "Again, if the judge had a little bit more              
 leeway to do something, and if the judge chose to, instead of                 
 imposing jail term, it could be moderated with a driver's license             
 revocation.  In fact, a jail term might be needed in some                     
 situations."  He believes it gives greater recourse than a simple             
 traffic violation would.  Mr. Campbell related they had to track              
 down the action that was being taken, and finally found it was in             
 traffic court.  He said he and Mrs. Campbell requested to speak at            
 the time because nothing was being done at all.  He said he was               
 able to talk to the judge and request at least the $300 fine, or              
 perhaps community service in some area that would bring it home.              
 He stated he suggested ambulance service or that type of thing.               
 The judge gave that, but it was the maximum he was able to do.  But           
 that was only traffic court.                                                  
 CHAIRMAN PORTER said they were checking right now to see whether              
 this bill would give the court the option of suspending.  He saw              
 the Department of Law people shaking their heads and said the                 
 committee might want to make an addition to this bill.  Chairman              
 Porter asked for Scott Richardson to testify via teleconference.              
 Number 300                                                                    
 SCOTT RICHARDSON, testifying via teleconference from Mat-Su, stated           
 his son was also killed in the same accident as Mr. Campbell's son.           
 The boys were good friends.  He said when they found out the                  
 maximum penalty for reckless or negligent driving which resulted in           
 a death was a traffic ticket and a $300 fine, he and his wife were            
 dismayed.  Mr. Richardson related that in talking to the DA, and              
 eventually, the traffic court judge, they said in most states,                
 there is a misdemeanor charge for this kind of thing.  He said                
 there are three levels:  A traffic ticket; a misdemeanor; and a               
 felony.  In Alaska there is only a traffic ticket and a felony, no            
 middle ground.  He went on to say, "It's extremely difficult to               
 have a felony charge, or vehicular homicide situation.  You have to           
 have the person be drunk, or on drugs, or some extreme kind of                
 thing which, from the DA's example he shared with them, there were            
 a number of situations where the DA felt it should be convicted as            
 a felony, but there just wasn't enough evidence."  Mr. Richardson             
 said it was very difficult to get that felony, and he believes                
 there should be a medium punishment because the punishment should             
 fit the crime.  He said, "It was a dangerous and snowy day and his            
 recklessness resulted in the death of our son.  What does that say            
 to society?  We just give him a traffic ticket and a $300 fine.               
 We're just sending the wrong message."  Mr. Richardson said the               
 judge and the DA both agreed.  The judge said a misdemeanor or                
 felony charge would give a little more room to decide what he                 
 thought was appropriate in these situations.  Mr. Richardson feels            
 there is a gap in Alaska law that needs to be filled.                         
 Number 370                                                                    
 REPRESENTATIVE BUNDE thanked both gentlemen for testifying, knowing           
 it was very difficult for them, and hopefully, some progress in               
 this area of legislation will add to the healing process.                     
 Number 375                                                                    
 CHAIRMAN PORTER added that he had a requirement in his life to deal           
 with these kinds of situations on a professional level, and for               
 what it's worth, the approach expressed by Mr. Campbell, in terms             
 of trying to bring the matter to closure, is the best attitude to             
 take and he commends Mr. Campbell for having the ability to take              
 it.  Chairman Porter then asked Valerie Lemon to speak.                       
 Number 390                                                                    
 VALERIE LEMON, P.O. Box 870441, Wasilla, Alaska, testified in                 
 Juneau.  She stated she was involved in a car accident in November            
 1991 and her sister, Lori, was killed and Valerie was badly injured           
 and they didn't know if she would live.  She said, "My brother was            
 driving the car and he got a skull fracture.  The lady who ran the            
 red light hit Lori in the side of the car where she was sitting,              
 and I was in the back."  She related she used to be an excellent              
 figure skater when she was 8-years-old, and now she can't do it               
 because of the car accident and she is upset that all the lady got            
 was a $50 ticket.  Miss Lemon said, "This is Lorian the teacher of            
 this, the day that she died, called `I remember Lorian.'  Her long            
 hair.  Her beautiful smile.  Her wonderful laugh.  Her (indisc.).             
 Her graceful skating.  Her ability to make me feel as good as a               
 person and a teacher.  I will never forget my last memory of Lorian           
 picking up all the flowers her father sent for her birthday, that             
 shy smile as she opened up her card, not knowing who they were                
 from, and then the widest, most beautiful smile when she knew.                
 It's the one memory I will always cherish."  Miss Lemon showed a              
 picture of Lorian that her dad had taken.                                     
 CHAIRMAN PORTER thanked Miss Lemon and complimented her on her                
 testimony.  He then called on Valerie's mother, Mrs. Lemon.                   
 Number 500                                                                    
 FLO LEMON, P.O. Box 870441, Wasilla, Alaska, testified in Juneau.             
 Ms. Lemon stated, "Almost three and one-half years ago, at the                
 intersection of Muldoon and Northern Lights, three of my four                 
 children were involved in an automobile accident.  Lorian, who had            
 just turned 11 the day before, was killed instantly.  Valerie was             
 injured very critically, and my 17-year-old son, who was driving,             
 was also injured."  Ms. Lemon went on to say that the lady who had            
 run the red light and hit her children's car was not drunk, not on            
 drugs; just in a hurry to get to work.  She said the woman was not            
 paying attention and didn't see the light turn red.  Ms. Lemon said           
 there is something wrong with a system that allows a $50 fine for             
 killing someone while breaking a traffic law such as running a red            
 light.  She related that Valerie, in her testimony, had hardly                
 touched the surface of what she's been through and has yet to go              
 MS. LEMON stated: "I want the laws to change."  She feels that                
 people need to be responsible for their own actions.  She pointed             
 out that no matter what the size of a car it can be a dangerous               
 weapon if you are negligent.  She asked the committee to please               
 help pass this bill to protect others from going through what her             
 family and friends have gone through.  She related: "If you've ever           
 had a telephone call at work, it's a parent's nightmare."  Ms.                
 Lemon said when she got the phone call she only knew her son was              
 involved and had no idea her two girls were involved in this                  
 accident.  Ms. Lemon said, "It is the worst thing when you see, at            
 a hospital, all these blue uniforms coming to you, and I hope to              
 God that not any one of you will have this happen to you."  She               
 continued, "I hope this law gets passed because I think it was                
 something that was needless.  It was a very violent death and it              
 was not necessary."                                                           
 CHAIRMAN PORTER asked if anyone else would like to give testimony             
 on HB 255.                                                                    
 DEPARTMENT OF LAW, said she "very much feels for the losses heard             
 about in the committee meeting.  If there were a way that our laws            
 could make people whole in these situations, truly, we would want             
 that to happen."  She stated that her points today are fairly                 
 technical legal points and wouldn't expect any of the people heard,           
 who have suffered, to really be able to appreciate this perspective           
 and so she apologized to them.  She said she "by no means wants to            
 belittle the circumstances they have gone through."                           
 MS. KNUTH related the problem from a legal perspective, there is              
 the crime already called "criminally negligent homicide," which is            
 virtually identical to the crime being proposed.  It is a Class C             
 felony and if negligent vehicular homicide became a crime, it would           
 become a lesser included offense of criminally negligent homicide.            
 A lesser included offense means that in every case that went to               
 trial, the jury would have a right to hear about this other lesser            
 offense, and juries frequently take advantage of lesser included              
 offenses.  It's a way of sort of "splitting the baby" and pleasing            
 both the prosecution and the defense.  She said, they know if there           
 was an offense such as this, they would lose virtually every                  
 criminally negligent homicide case that they got.  The jury would             
 reduce it to negligent vehicular homicide and it would be a                   
 misdemeanor offense.                                                          
 MS. KNUTH stated the difference between the two is two words.  She            
 asked the committee to look at the bill on page 1, line 13:  For              
 criminally negligent homicide it is, instead of "perceiving an                
 unjustifiable risk," it's "perceiving a substantial and                       
 unjustifiable risk."  And on line 14, instead of "constituting a              
 deviation from the standard of care," criminally negligent homicide           
 "constitutes a gross deviation from the standard of care."  She               
 said it is very unlikely that a jury would be able to tell the                
 difference between an unjustifiable risk and what is a substantial            
 and unjustifiable risk, and what is a deviation from the standard             
 of care, and what is a gross deviation from the standard of care?             
 She added that these are concepts that are difficult enough to                
 explain to a jury.                                                            
 MS. KNUTH noted two things:  "If you were seeking to revoke a                 
 person's driving license with this new offense, you would need to             
 also amend AS 28.15.181."  She then listed the types of convictions           
 that are grounds for the revocation of driver's licenses:                     
 Manslaughter or negligence resulting from driving a motor vehicle.            
 She stated the committee would need to add "negligent vehicular               
 homicide" to that list.  There is a Class A misdemeanor driving               
 offense right now of reckless driving, that is 28.35.040.  She said           
 there is something for criminally negligent homicide and negligent            
 driving.  There are only certain circumstances when it applies and            
 it apparently was not applicable in the running the red light                 
 situations described here today.                                              
 MS. KNUTH said traditionally, criminal law has stopped with                   
 criminal conduct and that is what criminally negligent homicide is,           
 the lowest form of criminal behavior the law is taking action                 
 against.  Anything less than that is civil negligence.  She stated            
 to make criminal negligence a crime is entering an area not entered           
 before.  Ms. Knuth said society's answer is civil liability for               
 civil negligence.  She agreed all of the problems described by Mr.            
 Campbell are very real and they do prolong the entire experience              
 and it may not be economically, or in any way rewarding to do it,             
 but that is the remedy that Alaska law specifies for civil                    
 MS. KNUTH also noted if a conviction is obtained in a criminal                
 case, that creates almost a per se judgment in a civil case.  There           
 is no need to go through and reprove the civil case.  She said it             
 could be anticipated there would be a number of people who want               
 these civil negligence cases prosecuted because if there is a                 
 conviction they could use it for their liability cases.  Ms. Knuth            
 stated the way the traffic system is set up, licenses can be                  
 revoked if a person accrues more than a certain number of points in           
 a limited period of time.  She said the types of driving violations           
 described in the hearing don't involve enough points to lose a                
 license on just the one incident, but other bad driving resulting             
 in point offenses, that would result in license revocation.  She              
 asked if she could answer any questions.                                      
 Number 620                                                                    
 REPRESENTATIVE DAVID FINKELSTEIN commented that this is a                     
 complicated area.  He asked Ms. Knuth to tell him a little more               
 about the reckless driving, and what it takes to get into that                
 category, and the reference numbers.                                          
 Number 630                                                                    
 MS. KNUTH responded it's 28.35.040, and it says "A person who                 
 drives a motor vehicle in a manner that creates a substantial and             
 unjustifiable risk of harm to a person or to property is guilty of            
 reckless driving.  A substantial and unjustifiable risk is a risk             
 of such a nature and degree that the conscious disregard of it, or            
 failure to perceive it, constitutes a gross deviation from the                
 standard of conduct that a reasonable person would observe in this            
 REPRESENTATIVE FINKELSTEIN said it didn't sound much different than           
 the standard for the Class C felony of criminally negligent                   
 homicide.  It still has `gross deviation.'                                    
 MS. KNUTH agreed and said to a certain extent, the criminally                 
 negligent homicide is reckless driving that results in death.                 
 REPRESENTATIVE FINKELSTEIN brought up the fact that once the things           
 get on the books, they get subsumed under another category when the           
 jury is given its choices.  He asked what the terminology was.                
 MS. KNUTH said, "the lesser included offense."                                
 REPRESENTATIVE FINKELSTEIN asked why, since it doesn't require a              
 death, why wouldn't that be a lesser degree when someone is up for            
 charges on negligent homicide?                                                
 MS. KNUTH answered that in that situation, the lesser included                
 offense would require the jury to find that nobody died as a result           
 of the accident.  If that was the finding, the reckless driving               
 would be a lesser included offense.                                           
 Number 650                                                                    
 REPRESENTATIVE BUNDE said he, too, was appalled that these things             
 happen and just end up in traffic court.  He asked Ms. Knuth to               
 speculate why they'd end up with a $50 traffic ticket instead of              
 these other tools that could have been used.                                  
 Number 675                                                                    
 MS. KNUTH replied that sometimes accidents happen and sometimes               
 they are fatal.  And it wasn't a crime.  It was certainly tragic              
 and nothing anyone would desire, but in these circumstances it was            
 related the driver wasn't intoxicated or on drugs.  It was simply             
 a failure to pay sufficient attention, or inability to stop in                
 time.  She stated that culpability is measured more by the person's           
 conduct than what happens as a result of that conduct.  Ms. Knuth             
 agrees the results in these cases were awful, but in terms of how             
 culpable was the driver, there are times when these situations                
 happen and it doesn't go beyond the level of negligence.                      
 REPRESENTATIVE BUNDE said from his point of view, part of the laws            
 should also involve some societal condemnation, and when there is             
 a death involved that need seems to elevate for him.                          
 Representative Bunde asked Ms. Knuth about her testimony on                   
 revocation of licenses.  When there is an accident where it                   
 involves a loss of life, would she see a problem with increasing to           
 points to this type of accident?                                              
 Number 690                                                                    
 MS. KNUTH responded she thinks the point schedule is developed                
 through the Department of Motor Vehicles and regulations, and that            
 is something they could probably look at.  She assumed there are              
 points given for negligent driving and may have been charged in               
 these cases.                                                                  
 REPRESENTATIVE VEZEY said his recollection that reckless driving              
 carried a variable penalty of 6 to 12 points, at the discretion of            
 the judge, but he could be wrong.                                             
 MS. KNUTH said she thought that was accurate.  She saw that                   
 reckless driving is basis for license revocation, but does not see            
 negligent driving on that list.  She said it may be it is not there           
 and the reason the action might not have been taken.                          
 CHAIRMAN PORTER stated that at some point he thought they dropped             
 "negligent" for "careless."  They have just gone from reckless to             
 Number 715                                                                    
 REPRESENTATIVE CYNTHIA TOOHEY asked Ms. Knuth if the rules on the             
 book now are the maximum?  She asked, "If you had your druthers,              
 would you take this piece of legislation and superimpose it onto              
 the one we have now?"                                                         
 Number 720                                                                    
 MS. KNUTH answered she would not because she feels there is a need            
 for a felony vehicular homicide law, and there are people who need            
 to be on probation who have caused loss of life.  She stated her              
 concern is if this misdemeanor offense is created that all of those           
 felony people are going to get advantage from that.  She said as a            
 matter of philosophy, she thinks criminal law should be restricted            
 to criminal conduct.  If it is just a civil negligence in the                 
 conduct then it should be restricted to civil penalties, except for           
 the traffic matter, which is sort of a parallel matter that is                
 going on.                                                                     
 Number 735                                                                    
 REPRESENTATIVE VEZEY said he thinks there is some real problem with           
 the law, and there have been a lot of "gyrations" the last six or             
 eight years over mandatory insurance and he believes the standard             
 right now is minimum insurance requirement liability insurance is             
 $100,000?  He asked, "That is maximum per occurrence isn't it?"               
 MS. KNUTH said she would have to look it up.                                  
 REPRESENTATIVE VEZEY stated he does believe that is a serious                 
 weakness in the law.  He felt that figure is too low.                         
 Representative Vezey feels this area of minimum insurance                     
 requirements should be addressed.  He stated if this requirement is           
 raised there would be some people who will be assessed an insurance           
 premium that will be prohibitive to them economically; therefore,             
 they will not be able to satisfy the Department of Motor Vehicles             
 requirements to get a license.  This would amount to economic                 
 revocation of their driver's license.  Representative Vezey said he           
 saw nothing wrong with denying them a license if they can't afford            
 the risk.  This is an approach he would like to see the committee             
 pursue.  He pointed out you would not be using either civil, or               
 traffic, or criminal courts to pursue a remedy.  This would allow             
 the statute to work through the marketplace.                                  
 Number 771                                                                    
 REPRESENTATIVE FINKELSTEIN said he was trying to assess this                  
 category.  He asked if Ms. Knuth would try to help him understand             
 the kinds of crimes, under the criminally negligent homicide                  
 category, cases that end up in here?  He asked if they were mostly            
 drunk driving?                                                                
 MS. KNUTH answered that was correct.                                          
 REPRESENTATIVE FINKELSTEIN asked if there were others that make up            
 a significant portion of those?                                               
 Number 773                                                                    
 MS. KNUTH said she didn't know, as she is not familiar enough with            
 the prosecution of these cases.                                               
 REPRESENTATIVE FINKELSTEIN brought up two more things that might              
 deserve investigation.  They are to try to figure something that at           
 least gets into the issue of driver license revocation, perhaps               
 through the point system.                                                     
 Number 780                                                                    
 REPRESENTATIVE JOE GREEN asked Ms. Knuth if a person were to use a            
 gun negligently with no criminal intent, and it discharges and                
 kills someone, are there laws on the books to cover that, or is               
 that also just a minor problem?                                               
 Number 785                                                                    
 MS. KNUTH answered it is not a minor problem, but not necessarily             
 a criminal matter.  She related there are circumstances where kids            
 are involved in shooting accidents and it is negligence.  There is            
 no prosecution if it is just negligence.  She stated the people               
 involved in these circumstances pay a much greater toll for what              
 they have done, just from having to live with themselves, than                
 anything that could be done to them through the criminal system.              
 Ms. Knuth said she has never seen anyone who accidentally caused              
 the death of someone else who was blase' about it.  She said that             
 what could be done through the criminal system pales compared to              
 what they do to themselves.                                                   
 Number 805                                                                    
 REPRESENTATIVE GREEN said he could appreciate what Ms. Knuth was              
 saying, but after the fact, is there some way this can be                     
 addressed, if it is not criminal, that there could be something               
 done to the civil laws then that would bring this awareness before            
 the fact.  He pointed out that getting a driver's license is a                
 simple thing and we get so blase' about driving a car without                 
 realizing it's a killing machine.  Representative Green asked where           
 something could be done in the civil side that would be a                     
 MS. KNUTH said that traditionally, extending the civil court and              
 just the fear of being bankrupted through civil judgment would be             
 a deterrent.                                                                  
 Number 820                                                                    
 REPRESENTATIVE VEZEY said he has always been confused on this area            
 of the law, but if the matter was covered by insurance he said he             
 believes you fundamentally have a choice to either go after the               
 plaintiff's assets or the insurance.                                          
 MS. KNUTH answered, "You go for all of it."  She said usually                 
 people settle for the insurance because those are the easy dollars.           
 She gave the following example:  "You have a $2 million judgment              
 and the insurance is good for $500,000; you can put a lien on the             
 home, good for another $200,000; then you hit their permanent fund            
 dividends for the next however many years."                                   
 REPRESENTATIVE VEZEY stated he was sure she was right, but the                
 fiduciary guideline is to carry enough insurance to cover your                
 assets, not your assets plus 100 percent.  He pointed out you don't           
 sue the insurance company.  You sue the party who has insurance.              
 Representative Vezey recognized that if the insurance didn't pay,             
 your other assets would be exposed.                                           
 MS. KNUTH said that's right, if you had them.                                 
 Number 845                                                                    
 REPRESENTATIVE TOOHEY wanted everyone to understand why this bill             
 would not work.  She said she thinks this is not going to help, or            
 alleviate the problems in the future.  She asked if someone doesn't           
 think this is true, to please come forward.                                   
 Number 850                                                                    
 CHAIRMAN PORTER asked if anyone else would like to provide                    
 testimony on HB 255.  Hearing none, the public hearing was                    
 concluded.  He pointed out there were several approaches the                  
 committee could take considering this bill and its options, or                
 anything else any of the members might come up with to help with              
 Number 865                                                                    
 REPRESENTATIVE OGAN wanted to make a couple of comments.  He stated           
 that this was a case where there is a hole in the law.  He is not             
 sure if this bill is the proper vehicle, but this problem needs to            
 be addressed.  Representative Ogan referred to a comment made by              
 Ms. Knuth regarding the criminal versus the civil argument.  He               
 said he believes when you break a traffic law, and it results in a            
 death of a person, it should be a crime, a criminal action.                   
 TAPE 95-45, SIDE B                                                            
 Number 000                                                                    
 REPRESENTATIVE OGAN recalled the testimony of Valerie Lemon and Ms.           
 Lemon regarding the accident Valerie and her siblings were in.  He            
 said he thinks when someone is as negligent as this, there should             
 be some sort of ramifications for it other than a traffic ticket.             
 He asked the committee to come up with an alternate, or help him              
 with this problem.  Representative Ogan said he truly believes                
 these people need to suffer a little more ramifications for                   
 breaking the law and killing somebody.                                        
 REPRESENTATIVE OGAN asked if anybody had more questions or                    
 REPRESENTATIVE BUNDE commented he didn't think civil redress is               
 appropriate in this case where people are using vehicles to cause             
 the death of other people.  He feels the societal combination of              
 `you've broken a criminal law as well as a civil law.'                        
 Representative Bunde is sharing the frustration.  He would like to            
 see that gap filled, and he would like to see automatic revocation            
 of driver's license in this case.  He stated he refers to the legal           
 experts to get there, but it definitely needs to get there in his             
 REPRESENTATIVE OGAN commented that sometimes the legal experts have           
 real good legal reasons why we can't do it, but it doesn't                    
 necessarily make sense.  And it sometimes offends people's sense of           
 right and wrong.  He stated he clearly believes these cases have              
 offended his and other people's senses of right and wrong.                    
 Representative Ogan said he knows there is a fair amount of outrage           
 with people who can break traffic laws and walk away with impunity            
 Number 085                                                                    
 REPRESENTATIVE TOOHEY asked what are the penalties for felonious              
 CHAIRMAN PORTER responded that it would be a Class B felony.                  
 REPRESENTATIVE TOOHEY asked, which means what?                                
 MS. KNUTH stated Class B felony is five years in prison, more than            
 a $50,000 fine.                                                               
 CHAIRMAN PORTER said the first thing to address is, he got the                
 impression the idea of making this behavior, i.e., what is                    
 tantamount to a single traffic violation a misdemeanor crime, if              
 there is a death resulting, is problematical.                                 
 REPRESENTATIVE FINKELSTEIN agrees it is problematical in the                  
 setting of the law.  He said it sounds like it is also a reasonable           
 goal, we just haven't been able to do it in the context of the law.           
 CHAIRMAN PORTER said that is the first hurdle he is asking the                
 committee to consider.  He stated if the committee wanted to stay             
 with the notion of making this a misdemeanor crime, then perhaps              
 the ability to suspend or revoke the driver's license can be added,           
 and vote this thing through.                                                  
 Number 135                                                                    
 REPRESENTATIVE VEZEY said he is opposed to making homicide at any             
 level a misdemeanor as he thinks that is going backwards.  He said            
 he knows that the prosecution and incarceration of individuals                
 charged with negligent homicide with a vehicle is currently                   
 successful.  He stated he is not aware of any of those cases that             
 don't involve alcohol or drugs, but as soon as vehicular homicide             
 is made a misdemeanor the ability to put these people under                   
 incarceration for ten plus years goes away -- not technically, but            
 from a practical viewpoint it does.  Representative Vezey pointed             
 out if you give the jury or defense attorney these kinds of                   
 options, this reduces homicide with a vehicle from a possible                 
 felony, if it is indeed found by a jury to be criminal negligence,            
 nor intent either because people who are drunk don't intend to kill           
 people, then there would be no more felony convictions.                       
 REPRESENTATIVE VEZEY said it's not safe for society to be out in              
 the streets, and because of some of the existing laws we have for             
 getting some of those people are off the streets.                             
 Number 165                                                                    
 REPRESENTATIVE FINKELSTEIN asked Ms. Knuth what the effect would be           
 if the committee made it for serious bodily harm, not for death, so           
 it would be an option for the jury if they concluded a person did             
 die, it would then be an alternative to the reckless driving.  So             
 it would be a lower standard to meet it, but you would have to have           
 serious bodily harm.  Reckless driving is a higher standard, but no           
 proof of serious bodily harm.                                                 
 MS. KNUTH answered she was not quite certain what the implications            
 with that might be.  She did not know if the law is so warped that            
 a defendant could argue if the victim died, they certainly suffered           
 serious physical injury.  She said she would need to research that.           
 REPRESENTATIVE FINKELSTEIN said just for argument sake, the                   
 committee said, serious bodily harm short of death, so it couldn't            
 be a lesser included offense.  He felt there should be room out               
 there for the category being discussed here.                                  
 MS. KNUTH said actually, that would not address the category that             
 has been discussed here today, where the accidents were fatal.                
 REPRESENTATIVE FINKELSTEIN said his first question would still                
 remain, if one made this dependent on serious bodily harm.                    
 MS. KNUTH noted assault statutes are used, which relate to serious            
 physical injury in some driving cases.  So the law is not limited             
 to things specifically for motor vehicle accidents.  A car counts             
 as a dangerous instrument.                                                    
 REPRESENTATIVE FINKELSTEIN asked if all those assault statutes were           
 MS. KNUTH agreed they are.                                                    
 REPRESENTATIVE FINKELSTEIN said he didn't know if the goal was                
 achievable or not, but the goal is a lower standard, a lower                  
 REPRESENTATIVE BUNDE said in his mind, he thought the committee               
 should continue to explore a criminal penalty for the behaviors               
 being talked about and try to get it out of the civil arena.  He              
 pointed out that to address the concern about lesser and included             
 offense, if they have used alcohol then they are guilty of reckless           
 or negligent homicide?                                                        
 MS. KNUTH replied they were able to prosecute them.                           
 REPRESENTATIVE BUNDE asked if it would be possible to put some                
 proviso in this or similar legislation of not having used drugs or            
 alcohol, "I have not driven in impaired state."  They would only be           
 charged for this offense and not in the other offense so that when            
 you have this lesser and included, somebody who has used chemicals            
 could be charged by the other offense, then the jury can't plead              
 MS. KNUTH said this would warrant some pretty close scrutiny by               
 more people than just herself, but she knows the defendants would             
 argue:  We weren't intoxicated.  We didn't prove it, and therefore,           
 it should be a lesser included offense.  She stated the question is           
 how much evidence do they need to get that to the jury, and the               
 jury is then able to do what it wants with the case.  She didn't              
 know at what point they could say, "I was a refusal.  I didn't even           
 take the intoximeter, and you don't have any evidence of                      
 intoxication."  Ms. Knuth said she could see that they would want             
 to look at that very closely.                                                 
 CHAIRMAN PORTER asked if you would have a presumption?                        
 MS. KNUTH responded, that's correct.                                          
 Number 275                                                                    
 REPRESENTATIVE TOOHEY said she asked the sponsor if there were any            
 other states that had this law, and he stated that Michigan does              
 have a law on the books.  Representative Toohey gave a copy of the            
 law to Ms. Knuth for review.                                                  
 Number 285                                                                    
 REPRESENTATIVE GREEN referred to the lesser included offense and              
 asked if that was a procedure, a law?  What triggers that?                    
 Number 290                                                                    
 MS. KNUTH answered she didn't know if it was constitutionally                 
 required.  She thought it was, and the defendant has a                        
 constitutional right to ask the court for any and all lesser                  
 included offenses, and depending on the charge, i.e., assault in              
 the third degree can be a lesser included offense of assault in the           
 second degree, which is a lesser included of assault in the first             
 degree, and so you get to present all of these to the jury.  She              
 went on to say as long as the lesser included offense doesn't have            
 any new elements that aren't found in the bigger offense, you get             
 the instruction.                                                              
 REPRESENTATIVE GREEN said she had hit the key word.  There is no              
 sense in trying to attack that portion if there is a constitutional           
 process.  He thought maybe there could be one way the committee               
 could attack a court rule or something.                                       
 MS. KNUTH said no.                                                            
 REPRESENTATIVE BETTYE DAVIS suggested a subcommittee to further               
 pursue HB 255.                                                                
 CHAIRMAN PORTER agreed and said the committee had the will but not            
 the way yet and so what he would like to do is appoint a                      
 subcommittee.  He asked if there was anyone who would like to serve           
 on the subcommittee?                                                          
 REPRESENTATIVE DAVIS said she would like to serve, and she would              
 like the legal department to be there.                                        
 CHAIRMAN PORTER appointed a subcommittee with himself as Chair,               
 with Representatives Green, Davis and anyone else.  He felt they              
 ought to try to come up with something and he apologized to those             
 testifying that it cannot be brought to a close at that time                  
 because they want to try to do something that's meaningful, not               
 something that will result in a tragedy.  Chairman Porter said, as            
 everyone knows by statistics they keep hearing, the majority of               
 vehicular homicide cases are as a result of reckless and                      
 intoxicated drivers, and the committee would not want to mitigate             
 the responsibility that those individuals have incurred by good               
 intentions here.  Consequently, the committee will go to "plan B"             
 which has not been formulated, but the committee would endeavor to            
 come up with something that works.  The committee held HB 255 for             
 that purpose.                                                                 

Document Name Date/Time Subjects