Legislature(1995 - 1996)
05/06/1995 09:40 AM Senate FIN
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* first hearing in first committee of referral
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CS FOR HOUSE BILL NO. 159(JUD)
An Act allowing a person under age 21 to be arrested by
a peace officer without a warrant for illegal
possession, consumption, or control of alcohol;
relating to the offenses of driving while intoxicated
and failure to submit to a chemical test of breath or
blood; and providing for an effective date.
Co-chairman Halford directed that CSHB 159 (Jud) be brought
on for discussion. DANIELLA LOPER, aide to Representative
Porter, came before committee and read from the sponsor's
statement (copy appended to these minutes). She noted that
drunk driving remains a misdemeanor in Alaska regardless of
the number of times an individual is convicted. At some
point repeat convictions should constitute a felony. The
proposed bill would provide the criminal justice system
tools to combat this crime by:
1. Allowing a peace officer in any municipality to
arrest without a warrant minors who drink alcohol.
2. Rendering drunk driving a felony on the third
offense within a five-year period.
3. Granting prosecution ability to convict based on
prior offenses of lower blood alcohol levels than
provided for in current statutes.
The provision highlighted in item 3, above, would allow
Alaska to take into consideration convictions in other
states with lower blood alcohol standards when convicting an
individual on the third offense. The proposed bill would
give Alaska one of the toughest drunk driving statutes in
the nation. Passage would send a clear message that
Alaskans will no longer tolerate persons who drive drunk.
Senator Rieger asked how the proposed bill would mesh with
earlier passed legislation allowing peace officers to take
action without a warrant against juveniles in possession.
Ms. Loper advised that prior legislation allowed state
troopers to take action but did not allow municipalities to
do so. This bill makes that technical correction.
Discussion followed between Senator Rieger and Ms. Loper
regarding the case in Ketchikan giving rise to both the
proposed bill and earlier passed legislation regarding
warrantless arrest of juveniles.
In response to a question from Senator Zharoff regarding
infringement on individual rights, Ms. Loper directed
attention to page 1, line 8, and noted language allowing a
peace officer to arrest without a warrant when an officer
has "reasonable cause for believing that the person has
committed a crime . . . ." Senator Zharoff suggested that
arrest would then be based on the judgment of the officer.
Ms. Loper concurred, advising that that is the case in
almost every crime.
Senator Zharoff voiced concern regarding potential for
harassment of juveniles by police officers and suggested
that municipal liability may occur. Ms. Loper reiterated
that the standard in the proposed bill reflects statutory
practice since "the early 1960s." Further discussion of the
definition of "reasonable cause" followed.
Senator Rieger cited statutory ability to arrest without a
warrant in cases of stalking and suggested that ability to
make such an arrest usually involves immediate danger to
another person. He then noted that the situation is
somewhat different when applied to a minor in possession.
He acknowledged that the proposed bill is less troublesome
than earlier passed legislation in that the instant bill
allows for warrantless arrest followed by the usual judicial
process while the earlier bill allowed for warrantless
arrest, conviction, and subsequent appeal of the conviction.
Ms. Loper next referenced a memorandum from the district
attorney and read the following definition of minor
consuming (AS 04.16.050) into the record:
A person under the age of twenty-one years may not
knowingly consume, possess, or control alcoholic
beverages furnished persons under 04.16.051(b).
The district attorney contends that the word "possess"
should be interpreted to include possession by consumption.
Two judicial officers in the First Judicial District have
ruled that it does not. The court ruled that an officer who
contacts a minor under the influence of alcohol may not
arrest the minor unless the officer actually sees the minor
consume the alcohol, possess the alcohol, or control the
alcohol. Merely being under the influence in the officer's
presence is not enough. That is why the proposed bill is
attempting to change current statutes.
Further discussion followed regarding the definition of a
class C felony. Ms. Loper advised that it is the lowest
class of felony.
In response to a question from Senator Zharoff, Co-chairman
Halford advised that "this area is specifically exempted
from the day fines original legislation."
Senator Rieger referenced new language in Sec. 9, page 5,
and inquired concerning punishment under subsection (q),
noting that it applies in some cases but not others. Ms.
Loper explained that subsection (q) establishes the new
conviction upon a third offense. For an individual
convicted of more than two DWI offenses, the third
conviction will become a class C felony. The perpetrator
will spend 240 days in jail and will be subject to a $5,000
fine.
JUANITA HENSLEY, Chief of Driver Services, Division of Motor
Vehicles, Dept. of Public Safety, advised that for an
individual arrested for a subsequent drunk driving offense
within a preceding ten-year period, present law applies and
a felony will not be charged. When a third DWI offense
occurs within a five-year period, the perpetrator would fall
under new subsection (q) provisions and a felony would be
charged.
Co-chairman Halford asked how the cumulative fiscal note
cost of $1.8 million could be reduced. Ms. Loper asked that
in considering fiscal note costs, members bear in mind the
cost of a life. Senator Rieger suggested that fiscal notes
should show anticipated revenue resulting from the higher
fine associated with a class C felony. Co-chairman Halford
concurred. Senator Sharp observed that new efforts take
time to implement. Fiscal notes evidence addition of 16 new
positions scattered throughout four departments. He then
questioned whether costs set forth on fiscal notes would
actually accrue in the first year of operation. Co-chairman
Halford again concurred.
In response a question from Senator Rieger regarding the
levy of fines, Juanita Hensley explained that the statutory
fine schedule reflects a minimum fine. At the present time,
the court can levy a maximum fine of up to $5,000 on a
misdemeanor drunk driving conviction. The minimum fine for
a third offense is $1,000. She then attested to judgments
on first offenses ranging from $200 to $500. When queried
further by the Senator concerning changes under the proposed
bill, Mrs. Hensley advised, "In most of these cases I see
the courts only assessing a minimum fine." If a minimum
fine of $5,000 for third-offense felony drunk driving is
established, the court will require "at least a $5,000 fine"
for the offense.
Discussion of the number of arrests, prosecutions, and
convictions followed. Senator Rieger suggested that the
bill should generate approximately $300.0 in general fund
revenues. Co-chairman Halford suggested that at a 50%
collection rate the legislation should generate "half a
million dollars . . . ." He then voiced need for the
Legislative Finance Division to review fiscal note
assumptions and develop revenue projections based on both
assumptions and fine increases. The Co-chairman then
directed that the bill be held in committee pending receipt
of a fiscal note reflecting anticipated revenues. Senator
Sharp also asked that Legislative Finance review the Dept.
of Corrections fiscal note for possible reduction associated
with implementation of the new effort.
HB 191
CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 191(FIN)
An Act relating to the management and disposal of state
land and resources; relating to certain remote parcel
and homestead entry land purchase contracts and
patents; and providing for an effective date.
Co-chairman Halford directed that CSSSHB 191(Fin) be brought
on for discussion. REPRESENTATIVE THERRIAULT, sponsor of
the legislation, came before committee. He explained that
the proposed bill reflects the result of discussions with
staff from the Dept. of Natural Resource in the course of
subcommittee hearings on the budget. It contains cleanup
language and provisions for Title 38 developed from
legislation that died on the floor of the House during the
final days of last session. Representative Therriault
explained that in an attempt to mitigate the impact of
reduced funding, he asked department staff to "go through
their statutes [and] determine those things that were
outdated or just flat didn't make sense any more."
Negotiations and input produced the current bill which
cleans up language directing the agency to do things that no
longer make sense. An additional provision deals with the
land swap along the Glenn Highway to Girdwood. A
controversial section dealing with mining statutes was
removed from the bill and placed in separate legislation.
In response to a question from Senator Rieger,
Representative Therriault explained that the land swap
relates to right of way for a road project.
Responding to a question from Co-chairman Halford regarding
repeals within Sec. 5, Representative Therriault said that
provisions therein would place the land disposal program on
the same footing as other natural resource sale programs.
Whether or not to submit a budget request each year would be
discretionary rather than mandatory. Each budget proposal
would be complete and would request full funding needed to
get land disposals ready for sale, including access roads
and other capital improvements that might be required.
Co-chairman Halford further inquired concerning recreational
cabin-site leases and sales. Representative Therriault
noted that the current recreational cabin permit has never
been utilized because it is not workable as presently
structured. The new proposal is for a five-year lease at
market value with a right of renewal for an additional five
years or outright purchase at fair market value. The survey
is paid for by the purchaser. In response to a question
from Senator Phillips, Representative Therriault advised
that fair market value would be established at the time of
purchase.
NICO BUS, Legislative Liaison, Dept. of Natural Resources,
came before committee in response to a question from Senator
Phillips. He explained that the lease terms would depend
upon the size of the tract of land. Billing could be
monthly, quarterly, or annually. Further discussion of the
operation of the lease program followed. Representative
Therriault directed attention to page 17, lines 23 through
28, and noted provisions that a lease not exceed five years
with the right of an additional five-year extension. At any
time during the lease, the lessee may purchase the remote
cabin site by conducting a survey at that time. Senator
Phillips expressed a preference for front loading the
program by setting the purchase price at initiation of the
lease and obtaining that price in five payments over the
term of the lease with the possibility of a five-year
extension of purchase payments. Representative Therriault
explained that under present bill provisions, an individual
could enter a lease and immediately move into a purchase.
There may be individuals who only wish to lease the property
rather than own it. The current bill accommodates both
approaches.
In his concluding remarks, Representative Therriault
referenced the accompanying positive $225.0 fiscal note.
Co-chairman Halford expressed concern that the positive
revenue "comes from not doing anything because most of the
`shalls' that apply to the commissioner, in existing law,
are changed to `mays'. . . "
End: SFC-95, #63, Side 2
Begin: SFC-95, #65, Side 1
Co-chairman Halford referenced Sec. 24, relating to set-net
leases, and noted that the program was designed to tie lease
permits to nearby communities. The proposed bill appears to
repeal that condition. He then noted repeal of provisions
relating to remote parcels, the homestead program,
subdivision, etc., and advised of increasing discomfort with
the bill. Representative Therriault suggested that Ron
Swanson, Director, Division of Lands, Dept. of Natural
Resource, be asked to come before committee to speak to
technical questions. The Co-chairman concurred. Senator
Zharoff also voiced concern regarding application of Sec. 24
to Bristol Bay, where much traditional use of salmon occurs.
Co-chairman Halford noted that some of the mandatory
provisions within Title 38 were designed to force
administrations who sought to retain all land in state
ownership to do differently. He then directed that the bill
be held in committee for further review.
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