Legislature(1999 - 2000)
03/07/2000 08:07 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 367-REVOCATION OF DRIVING PRIVILEGES Number 1821 CHAIR JAMES announced the next order of business is HOUSE BILL NO. 367, "An Act providing for the revocation of driving privileges by a court for a driver convicted of a violation of traffic laws in connection with a fatal motor vehicle or commercial motor vehicle accident; and amending Rules 43 and 43.1, Alaska Rules of Administration." ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, said the purpose of HB 367 is to improve the safety of drivers on our highways. She noted that earlier this year a gentleman had called and talked to the department about a situation that caused the department to think about fatal accidents on Alaska highways. The gentleman's son had been killed in an automobile accident caused by bad driving on the part of someone else; however, the driving was not so bad as to be labeled criminal driving. She commented that the bad driving did result in a traffic violation citation, but current motor vehicle laws do not provide for any license revocation under these circumstances. MS. CARPENETI indicated that motor vehicle laws do provide for license revocation if a person is convicted of certain criminal conduct in connection with driving a motor vehicle, but that is not the case for traffic violations that result in a death on the roads. Therefore, HB 367 was drafted to address the problem by revoking the guilty individual's license for a year's time if the court finds by a preponderance of evidence that the person was driving a motor vehicle involved in a fatal accident and that violation of traffic laws contributed to the fatal accident. She informed the committee that HB 367 provides for license revocation concurrent to any other possible revocations that might apply; it also allows the court to provide a limited license if the court finds that the person needs a limited license for earning a livelihood and that granting the limited license would not endanger the public. Number 1976 REPRESENTATIVE OGAN asked if the administration supports HB 367. MS. CARPENETI replied in the affirmative. REPRESENTATIVE OGAN inquired as to the "lesser included offense" issue. MS. CARPENETI answered that she did not know if there would be a lesser included offense for a traffic violation. REPRESENTATIVE OGAN said he had introduced a bill very similar to HB 367 four years ago after a dear friends's two sons were killed in a traffic accident caused by irresponsible passing on the part of another young person in a different vehicle. He noted that the bad driver who had caused two deaths was fined only $300 and six points off his license. He explained that his bill had died in the Judiciary Committee because of the lesser included offense. He commented that the department had told him that if a jury could not convict a driver on a felony charge, the jury could not convict because of bad driving, which is a lesser included offense. He indicated he is mystified as to the inconsistency of the Department of Law because HB 367 does not address the issue of lesser included offense, and yet that clause was the failing factor of his previous bill dealing with the same subject. Number 2129 MS. CARPENETI explained that the Department of Law's position regarding Representative Ogan's bill was that making a crime out of non-criminal negligence conduct was not viable. She noted that HB 367 does not establish a new offense but is a license revocation Act, as a way of addressing bad driving, that does not require a culpable mental state high enough to justify criminal prosecution. REPRESENTATIVE OGAN asked why the Department of Law had not suggested something that would resolve the problem instead of testifying against his legislation. He emphasized that he is sure other people have been killed [because of unpunished bad driving habits]. Number 2238 MS. CARPENETI replied that she guessed that when Department of Law was reviewing Representative Ogan's bill, the department was concerned about the criminal aspects of charging somebody whose culpable mental state was only civil negligence. She said she was sorry that the department was not creative enough to think of a solution at that time. CHAIR JAMES commented that she is happy with HB 367 but recognizes that the gentleman whose son was killed might have received some satisfaction if Representative Ogan's bill had passed four years ago. She acknowledged that when people are testifying for or against a bill, they usually are not thinking about solutions to get the bill passed but are thinking about their arguments for or against it. She said there have been times in the eight years she has served in the legislature when the administration has offered solutions for drafting bills correctly. Number 2346 MS. CARPENETI noted that when adopting laws for a crime for certain conduct it is a different mind set than for a license revocation. CHAIR JAMES said she understood that. She surmised that probably the Department of Law was reviewing specific language in Representative Ogan's bill and what it was doing, as opposed to the purpose for filing the bill. She commented that it was unfortunate that Representative Ogan's bill did not pass, and suggested that in the future when someone objects to a bill, the sponsor can ask for suggestions as to ways to fix the bill. Number 2398 REPRESENTATIVE OGAN asked if the lesser included offense [clause] will not be a factor in felony cases. MS. CARPENETI answered that HB 367 does not relate to a crime. Rather, it is a license revocation for a person who gets convicted of a traffic violation that results in death. REPRESENTATIVE OGAN said he wants to make sure, however, that a judge will not require "lesser included offense" in HB 367. CHAIR JAMES asked whether license revocation is an administrative decision or goes to trial. Number 2477 MS. CARPENETI replied that HB 367 is a court revocation. CHAIR JAMES asked whether, in a court revocation, there is a trial or it is the judge who decides about the preponderance of evidence. MS. CARPENETI replied that a judge decides by preponderance of evidence because HB 367 is a court revocation. She acknowledged that one effect of HB 367 is that a person who contests the traffic citation will have a right to a jury trial since there is a possibility of loss of a valuable license. In answer to Representative Ogan's previous question, she explained that she personally is not familiar with judges instructing on lesser included offenses for traffic violations and has never seen that happen. Usually, she added, lesser included offenses involve crime, and HB 367 is not talking about crime but about bad driving and traffic violations that do not rise to the level of criminal conduct. Number 2526 REPRESENTATIVE OGAN asked how juries are instructed; for example, if they cannot convict on (a), then can they go to (b)? He asked whether that scenario could happen with HB 367. Number 2541 MS. CARPENETI replied that if a prosecutor believes he/she can prove that this person committed a crime by evidence beyond a reasonable doubt, that person is formally charged. That person enters a plea of not guilty, the trial proceeds, and evidence is gathered. However, if evidence comes into the trial in a way that was not anticipated by the prosecution, the prosecution might ask for instructions on a lesser included offense if elements of a lesser offense are included within the elements of the higher offense. She noted that the defense lawyer may request instructions on "lesser included" because he/she may believe that the person has a chance of acquittal on a less serious crime and getting a better result for a lesser crime. If the judge is willing to give "lesser included offenses," he/she uses a variety of factors to decide whether there is enough evidence that would make it logical to give those instructions. Number 2615 REPRESENTATIVE OGAN said he understood that there is a possibility that a defense attorney may ask the judge to convict a person at a lesser charge if the person cannot be charged at the higher criminal level. MS. CARPENETI offered her opinion that a defense attorney could make the argument that his/her client is not guilty of any crime and that the court should just consider a citation, but that would be a very unusual case. REPRESENTATIVE GREEN commented that he had spent time with a judge one day and heard four driving-without a-license cases, all associated with driving under the influence of alcohol (DWI); two of the four cases involved someone caught for the fifth time driving without a license. All four had plea-bargained to some lesser offense. He asked what HB 367 will do to ensure that those kinds of people will not drive without a license, since drunks are allowed to drive without licenses on multiple occasions. Number 2698 MS. CARPENETI answered that HB 367 provides for revocation of a license. If a person is caught driving with a revoked license, there is a misdemeanor offense. If a person's license is revoked for DWI and that person drives again and is caught, then that person can be charged with driving with a revoked license, which carries a mandatory minimum of ten days in jail. REPRESENTATIVE GREEN pointed out that the two people who had been caught five times obviously are going to drive regardless of what HB 367 legislates. He asked if anything in HB 367 has teeth in it other than revocation of a license. Number 2739 MS. CARPENETI replied that HB 367 does not address DWI situations because driving with a revoked license is a misdemeanor crime. Rather, HB 367 deals with driving with traffic violations. If a person's license is revoked, then one would hope that he/she would not drive. She noted that a person caught driving with a revoked license could be charged with a misdemeanor and put in jail. Therefore, HB 367 does have teeth in essence. REPRESENTATIVE GREEN reiterated that the person could plea bargain down. He said he shares Representative Ogan's frustration and does not believe HB 367 does anything [useful]. Number 2769 REPRESENTATIVE KERTTULA said she thinks HB 367 is an interesting idea because she had not realized that [bad driving was not punished] already. She asked if Ms. Carpeneti could give any other instance where causation is so attenuated because HB 367 characterizes "contribution" as part of the violation, which seems a really low standard. She wondered if there was any other violation of such low standard in that it is just a contribution, not a direct cause of what happened. MS. CARPENETI answered that HB 367 provides for license revocation under [bad driving] circumstances, it is not a causation. She noted that a traffic violation has to be proved beyond a reasonable doubt, just as for any violation or crime, and then the court looks to a preponderance standard to ascertain whether the traffic violation contributed. Number 2817 REPRESENTATIVE KERTTULA said she understood that, but even in traffic violations, how can a contributor be held responsible for what happens? She asked if other traffic violation laws were on the books wherein a person could be held accountable for a contribution sufficient enough for license revocation. MS. CARPENETI answered that HB 367 would apply to any violation involving a moving vehicle. REPRESENTATIVE KERTTULA indicated she could foresee responsibility for an accident getting moved on down the line. For example, she described a scenario where she had just contributed to something [an accident] but was not driving the car that actually hit someone. She again asked if there is some other traffic violation that is so removed from cause and yet still charged as a violation. Number 2860 MS. CARPENETI replied that invocation of HB 367 would require a citation on the part of a police officer. REPRESENTATIVE KERTTULA said [that under] HB 367 a very removed sequence of events can still result in revocation of license. CHAIR JAMES said she had actually executed a "360" [degrees] in the middle of an icy road, so she understood what Representative Kerttula was referring to in regard to contributing to an accident. Fortunately, no other car was there at the time, so it did not result in an accident; however, she suspected that if a policeman had been present she would have received a citation. She reiterated that purely and simply because of the conditions of the road a person could be held responsible under HB 367. She asked if that is the true intent of HB 367. TAPE 00-16, SIDE B Number 2969 MS. CARPENETI acknowledged that there are such things as traffic accidents where no one is cited. However, if a person does get cited for a traffic violation, the violation must be proven beyond a reasonable doubt. The person will have notice and opportunity to be heard, will have a lawyer appointed, and will have a right to jury trial because of the possibility of loss of a valuable license. If a person is convicted, the court will have to find by a preponderance of evidence that the traffic violation contributed to a death. Therefore, Ms. Carpeneti said, she thinks a person will be afforded due process of law, and, in terms of consequences, it is very serious to drive with a revoked license. Number 2880 CHAIR JAMES asked whether the penalty would be different if a person performed a "360" in the road, was observed by a police officer, and was cited, but no death resulted. MS. CARPENETI replied in the affirmative. She reiterated that the point of HB 367 is that traffic fatalities happen sometimes as the result of bad driving, and not necessarily because of criminal driving, criminally negligent homicide, DWI, or other criminal behavior. Nevertheless, for the safety of the driving public, people who drive badly and cause the death of another should probably not be driving for a while. Number 2835 REPRESENTATIVE GREEN reiterated that the two offenders he had cited earlier were plea-bargained down. He emphasized that the judge actually admitted that plea bargains are done because the prosecuting attorney is so busy that the attorney does not have time to adequately prepare for the cases ahead; therefore, the attorney plea bargains to something simpler. Representative Green said that is a travesty to him, and he had even talked to the judge afterwards about it. He said HB 367 would affect law- abiding citizens instead of the people who need to be stopped. He expressed frustration at this kind of "slap on the hand" [legislation]. In response to Ms. Carpeneti's remark that she would have to know more about the situation, Representative Green said he would tell her the judge's name after the committee meeting. MS. CARPENETI acknowledged that there are some cases where plea bargaining can be very frustrating to everybody concerned, and probably as frustrating to the prosecutor because the court tries to charge people with the right level of crime and to have them convicted. Number 2762 REPRESENTATIVE HUDSON remarked that he is trying to figure out how HB 367 will make roads safer. Would it serve as a threat of added punishment, or remove somebody from the roads who did not commit a crime but who contributed to an accident that resulted in death? If HB 367 is simply elevating punishment to a law- abiding citizen who happens to be a contributor to a fatal accident, he said he is having a hard time finding any public good in it. He asked what is cured by HB 367 and how people will know that their licenses can be revoked if they become a contributor to a fatal accident. Number 2658 MS. CARPENETI answered that she thinks people will eventually learn that if they commit a traffic violation, are cited and convicted of an accident that results in death, they have the potential of losing their license. That threat is important in encouraging people to be more careful. She reminded the committee that HB 367 requires that the cause [which results in death] of the traffic citation is what results in license revocation. REPRESENTATIVE HUDSON quoted from paragraph two of Governor Knowles' letter to Representative Porter, dated February 10, 2000: "Regardless of whether their conduct is criminal, drivers whose traffic violations contribute to an accident causing the death of...." He pointed out that it does not say "causing the death" but says that even if they "contribute to" it, they could lose their license and be elevated to this higher penalty. Number 2593 MS. CARPENETI explained that HB 367 provides for a violation of traffic laws for which a person had to have a conviction. Therefore, a person would have to be convicted of a traffic violation that contributed to the accident. REPRESENTATIVE HUDSON asked if it is a conviction that triggers HB 367. MS. CARPENETI answered that HB 367 requires a conviction beyond a reasonable doubt. REPRESENTATIVE SMALLEY asked Ms. Carpeneti if she could identify situations under which a judge would grant a limited driving privilege as described in Governor Knowles' letter, previously cited, in the third paragraph where it says "to grant limited license privileges if it determines driving is critical to the person's livelihood and will not pose a danger to the public." Number 2548 MS. CARPENETI replied that in just about every license revocation statute, judges do have the authority to grant a limited license sometimes after a certain period of time. Such a limited license is usually granted when there is no public transportation to the person's work and the person would lose his/her job if unable to get to work. A limited license would allow the person to drive to and from work during certain hours of the day, and only at those times. REPRESENTATIVE SMALLEY asked if the person might be a single parent or the only parent working. Number 2514 MS. CARPENETI answered in the affirmative. She said judges would consider circumstances, for example, if no one else is able to drive that person to work or if there is no bus service. She noted that limited licenses are granted because if the person is left without the ability to work, then their family does not have an income which, in turn, creates more problems. However, a judge cannot grant a limited license unless he/she is convinced that the conditions on the license - to and from work during certain hours of the day - would still protect the public. Number 2492 REPRESENTATIVE SMALLEY inquired as to Ms. Carpeneti's perception regarding decline in revenue to the Public Defender's Office. He asked if HB 367 would cause difficulty with case flow. MS. CARPENETI replied that numbers affected by HB 367 are relatively small. The Department of Law had reviewed the number of fatal accidents from 1996 to 1998 and found that there were about six to eight cases where there was a traffic citation and the traffic violation was the cause of a fatal accident. Number 2438 REPRESENTATIVE OGAN said he thinks HB 367 does have some public good. His friends whose two sons were killed were left with the feeling that their sons' lives were valued at only $300 by the state. Therefore, maybe the public good is that if the reckless driver had lost his license, he might have told the driver to slow down the second time they were out driving recklessly. He noted that at least HB 367 places some tangible consequences for reckless driving and taking lives. Number 2258 REPRESENTATIVE HUDSON asked Representative Ogan if the reckless driver who caused the death of two boys caused the accident or contributed to the accident. REPRESENTATIVE OGAN answered that the reckless driver directly caused and was cited for the accident. REPRESENTATIVE HUDSON asked if someone could be penalized under HB 367 by simply contributing to, not necessarily causing, an accident. Number 2208 REPRESENTATIVE GREEN cited page 2, lines 21 and 22, where it says "limitation can be placed on the license that will enable the person to earn a livelihood without danger to the public." Since the person driving only to and from work is very likely doing so during rush hour, Representative Green asked if there is any judge who can say that by allowing this person to drive, there is no danger to the public. MS. CARPENETI replied that most statutes that allow a limited license state "without excessive danger to the public." When the Department of Law was reviewing HB 367, the administration thought "excessive" was too much danger. Number 2158 REPRESENTATIVE GREEN reiterated that a judge in all logic cannot say "there is no danger to the public." MS. CARPENETI answered that much depends upon the prior driving record of the person seeking a limited license. REPRESENTATIVE GREEN emphasized that the prior driving record has already been established. MS. CARPENETI replied that she meant a driver who had not previously had any bad points against his/her driving record. She indicated that it had seemed to the Department of Law when they reviewed HB 367 that a judge should be able to say a limited license does not cause danger to the public under these circumstances. Number 2123 CHAIR JAMES mentioned that she found it difficult to understand why Representative Ogan's accident case was not found to be criminal, and that she believes that in most fatal accidents someone is extremely guilty of making a wrong decision in the driving process. Perhaps the person was driving too fast or drinking, and sometimes she believes there are two people at fault. She indicated she would support HB 367 but, like Representative Hudson, is not sure that HB 367 will make roads safer. Number 1960 REPRESENTATIVE OGAN noted that in the case he had been discussing, there was not enough evidence to prosecute criminally because the driving was not reckless enough to prove negligent homicide, and no alcohol was involved. He added that HB 367 would be a message to those kinds of people. Number 1824 REPRESENTATIVE KERTTULA made a motion to move HB 367 out of committee with individual recommendations and attached zero fiscal note. REPRESENTATIVE HUDSON objected. A roll call vote was taken. Representatives Kerttula, Ogan, Smalley and James voted in favor of moving the bill. Representatives Green and Hudson voted against it. Representative Whitaker was absent. Therefore, HB 367 moved from the House State Affairs Standing Committee by a vote of 4-2.
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