Legislature(1993 - 1994)
05/04/1994 09:15 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SCSHB 445(JUD): An Act relating to operating or driving a motor vehicle, commercial motor vehicle, aircraft, or watercraft; to classifying certain driving while intoxicated offenses as felonies; to motor vehicle forfeiture; and providing for an effective date. C.E. Swackhammer, Deputy Commissioner, Department of Public Safety, spoke to the difference of the original and the Judicial version. He agreed with the bill on principle but the cost reflected in the department's fiscal note would not allow him to support the bill. Chris Christensen, Staff Counsel, Alaska Court System, testified that a new fiscal note was forthcoming approximately twice the amount of the existing one. Margot Knuth, Assistant Attorney General, Criminal Division, Department of Law, answered questions by the committee regarding the fiscal note for the Department of Law and number of hearings for DWI arrests. Juanita Hensley, Chief, Driver Services, Division of Motor Vehicles, Department of Public Safety, spoke to whose vehicles would be confiscated under HB 445. SCSHB 445(JUD) was HELD for a new committee substitute. SENATE CS FOR HOUSE BILL NO. 445(JUD): An Act relating to operating or driving a motor vehicle, commercial motor vehicle, aircraft, or watercraft; to classifying certain driving while intoxicated offenses as felonies; to motor vehicle forfeiture; and providing for an effective date. Co-chair Pearce announced that SCSHB 445(JUD) was before the committee with 6 fiscal notes making the bill very prohibitive. She invited someone from the department to speak to the bill. End SFC-93 #87, Side 1 Begin SFC-93 #87, Side 2 C.E. SWACKHAMMER, Deputy Commissioner, Department of Public Safety, said the Governor's bill that was introduced changed the implied consent law that would allow the taking of blood and urine in fatal and major injury accidents. In 1992, 382 major injury accidents occurred involving 552 drivers, and 89 fatality accidents involving 125 drivers. The Senate Judiciary version made two changes the department agreed with on principle but were prohibitive due to the high fiscal notes. The first change made a third time DWI offender a class C felony. The second change was that the court shall forfeit the offender's vehicle even if it was the first offense. He referred to page 10-11 of the bill. In answer to Senator Rieger, Mr. Swackhammer confirmed that forfeiture would occur on the first offense. In answer to Co-chair Frank, Mr. Swackhammer said that presently the Department had the right to take blood or urine samples if an arrest was made. In major injury accidents, the person would usually be in the hospital, and if an arrest was made, the department would be responsible for that person from that time on. Co-chair Pearce asked if the forfeiture portion of the bill added a fiscal note to the bill. Mr. Swackhammer referred to fiscal notes for the Department of Law for $786.3, and for the Alaska Court System in the amount of $986.9. In answer to Co-chair Frank, Mr. Swackhammer said there were over 600 cases of DWI third time offenders a year. The Department of Corrections had anticipated 320 additional beds would be needed for this legislation. CHRIS CHRISTENSEN, Staff Counsel, Alaska Court System, informed the committee that a new fiscal note, approximately double the existing one, would be forwarded to them. Each year there were about 4400 first time DWI cases in Alaska. The trial rate was under 5 percent because the consequences were generally 3 days in jail and a $250 fine. With this new legislation, consequences would change to a fine, 3 days in jail, and the confiscation of the vehicle. He said it would take four more district court judges to handle the conservative estimated 10 percent increase in trials which explained the revised fiscal note not yet received. In answer to Senator Rieger, Mr. Swackhammer said that drunk driving under SCSHB 445(JUD) would became a felony on the third offense. Mr. Christensen said that the day fines legislation specifically prohibited any crime with a mandatory sentence being treated with a day fine. DWIs would not come under that legislation if it should pass. In answer to Senator Sharp, Mr. Christensen said that any money the state received for the sale of any seized vehicle would go into the general fund. In answer to Co-chair Frank, Margot Knuth, Assistant Attorney General, Criminal Division, Department of Law, said the success rate of DWI cases going to trial was about 80 percent. If there was to be a mandatory sentence of 360 days in jail for the third DWI offense, the Department expected the success rate to go down because jurors would be aware of the sentence and may feel that it was not an appropriate sentence. It could drop to a 60-70 percent success rate. Again, in answer to Co-chair Frank, Ms. Knuth said that a ruling from the Alaska Supreme Court said that an error rate of one percent must be factored into cases on the breath machine, making a .10 no longer adequate but instead .11 was needed. Those cases would then be lost. Also, some DWI arrests were made on behavior or conduct rather than a breathalizer result and those were easier to argue. In any case that goes to the jury, there was a factor of a loss rate for unknown reasons even though the system did not allow for jury nullification. In answer to Senator Sharp, Ms. Knuth answered that if a person tested at 1.1, even though the jury should find the defendant not guilty of a DWI, his/her license would still stay suspended. Senator Sharp then asked why the forfeiture would not hold up. Ms. Knuth said the biggest problem with a forfeiture was that anyone that had an interest in the vehicle was entitled to a hearing on it. Rarely were the drivers sole owners of the vehicles. That was why a hearing was held in almost every forfeiture case. Mr. Swackhammer said it would be only the equity of the owner that would be wiped out. He said, in answer to Senator Sharp's first question, the forfeiture was court ordered and the refusal to take a breathalizer was implied consent. A driver's license could be suspended administratively and a forfeiture must be done through the court. In answer to Senator Rieger, JUANITA HENSLEY, Chief, Driver Services, Division of Motor Vehicles, Department of Public Safety, said under SCSHB 445(JUD) any vehicle could be forfeited whether it was borrowed or rented. She said the owner could petition the court for a hearing regarding the forfeiture of the vehicle. In answer to Co-chair Frank, Ms. Knuth said that about one- half to one-third of the fiscal note was caused by the forfeiture provision because of the hearings required in the forfeitures. In answer to Co-chair Frank, Ms. Knuth said that the Department of Law believed this legislation would have some deterrent effect, but not enough to offset the number of new trials expected. When a misdemeanor on a third offense became a felony, the motivation to go to trial would increase at least five times, causing trials to increase even though there might be a fifteen percent case load reduction because of the deterrent effect. Mr. Swackhammer agreed that the legislation would have some deterrent value but the system was already processing over 4,000 DWI cases a year and did not have enough beds to take care of existing offenders. Discussion was had by Senator Sharp and Mr. Swackhammer regarding restricting the forfeiture language to only third offenses. Ms. Knuth pointed out that the Courts already had a forfeiture provision that applied to third and subsequent offenses. The Court did use that provision when the defendant was the sole owner of the vehicle. The provisions of SCSHB 445(FIN) were mandatory in all offenses. She was not certain that any portion of the forfeiture provisions could be left in the bill and be useful. She suggested that over the interim a comprehensive forfeiture provision be written for this legislation. Ms. Knuth reiterated that the problem with the forfeiture provision was the number of hearings it would require. In answer to Senator Sharp, Mr. Christensen agreed that the new fiscal note was triggered by the forfeiture provision applied to first, second and third, etc. offenses. He said he would not have revised the fiscal note if it had applied only to third offenses. He wanted to point out that while the existing fiscal note did not take into effect the increased number of trials, it did take into account the increase in forfeiture hearings. He went on to say a conservative estimate said that 10 percent of the cases would have hearings, equating to 300 hearings at a half a day each, requiring three-quarter time of a circuit court judge. Discussion followed by Co-chair Frank and Ms. Knuth regarding real estate forfeiture procedures for use with vehicles. In answer to Co-chair Frank, Ms. Hensley said that there were very few forfeitures in process at present. Co-chair Frank observed that this process was cumbersome and he could understand why it was not used extensively. Ms. Knuth also pointed out that along with the process being burdensome, as offenses increased, the worth of the defendant's vehicle usually decreased. Co-chair Frank acknowledged that the opinion was that the vehicle should be taken out of the hands of the offender rather than capturing any money from the vehicle. Ms. Knuth again reiterated that the Department of Law completely supported the idea of confiscating vehicles but did not feel that this version of the bill was the appropriate one. In answer to Senator Rieger, Ms. Knuth said the original intent of the bill was to expand implied consent to cover accident cases where there was serious physical injury or death. The point was that the officer need not arrest the driver before asking for a blood or urine sample. Many of these accidents were caused by people under the influence of drugs and unlike alcohol there was no odor on the breath, bloodshot eyes or other signs of intoxication. The public's interest in finding out these persons were operating under the influence was so high it warranted asking them for blood or urine samples. Ms. Knuth agreed with Senator Rieger, that implied consent could be applied to a victim as well. Co-chair Pearce announced that SCSCSHB 445(FIN) would be held in committee.
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