Legislature(1999 - 2000)

05/15/1999 12:27 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
          HB 151-REVOCATION OF MINOR DRIVER'S LICENSE                                                                           
                                                                                                                                
CHAIRMAN TAYLOR informed committee members a new committee                                                                      
substitute (Version Q, 5/15/99) was prepared.                                                                                   
                                                                                                                                
PAT HARMON, legislative aide to Representative Pete Kott, informed                                                              
committee members that Representative Kott is in agreement with the                                                             
contents of the new committee substitute.                                                                                       
                                                                                                                                
TOM FINDLEY, a Juneau attorney, informed committee members he has                                                               
been working on this legislation because he is interested in the                                                                
subject.  He explained that minor consuming penalties were                                                                      
increased in Section 1.  Under current law the offense is an                                                                    
infraction; under this bill the third offense is a misdemeanor.  He                                                             
suggested the following changes.  The first offense should not                                                                  
result in a license suspension; currently the suspension time is 10                                                             
days, DMV would like to see that increased to 30 days.  Section 3,                                                              
which criminalizes alcohol consumption, should also criminalize                                                                 
drug use.  Alcohol consumption or drug use, while driving, will be                                                              
a class B misdemeanor and the minor's license will be suspended for                                                             
180 days for a first offense and one year for a second offense.                                                                 
                                                                                                                                
CHAIRMAN TAYLOR clarified the penalty for that offense was already                                                              
increased to emphasize a zero tolerance policy for drivers under                                                                
the age of 21.                                                                                                                  
                                                                                                                                
MR. FINDLEY added that a minor who has been caught for a third time                                                             
probably has a serious drinking problem and should have to appear                                                               
in court.  He noted some minors have been arrested as many as 18                                                                
times, but the violations are turned over to DMV so they never                                                                  
appear in court.                                                                                                                
                                                                                                                                
Number 215                                                                                                                      
                                                                                                                                
JUANITA HENSLEY, Division of Motor Vehicles (DMV), Department of                                                                
Administration, stated that a 10 day revocation is not enough to                                                                
get anyone's attention.  DMV prefers a 30 day revocation because no                                                             
revocation time for a first offense is not going to get the minor's                                                             
attention and result in change.                                                                                                 
                                                                                                                                
SENATOR DONLEY suggested using revocation periods of 30 days for a                                                              
first offense, 60 days for a second offense, and 90 days for a                                                                  
third offense, which is already in the bill.                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR asked if there was any objection to adopting                                                                    
version Q as the Senate Judiciary committee substitute.  There                                                                  
being no objection, the motion carried.                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR moved to increase the revocation time from 10 to 30                                                             
days, on page 3, line 29, and from 30 to 60 days on page 3, line 30                                                             
(Amendment 1).  There being no objection, the motion carried.                                                                   
                                                                                                                                
Number 249                                                                                                                      
                                                                                                                                
ANNE CARPENETI, Department of Law, stated she believes the Senate                                                               
Judiciary Committee version contains good compromises.  She pointed                                                             
out that increasing a third time offense to a misdemeanor creates                                                               
fiscal implications.  MS. CARPENETI suggested amending AS 28.15.185                                                             
because last year the court held that an offense must have a                                                                    
significant enough penalty to require a jury trial and court-                                                                   
appointed counsel.  As a result, AS 28.15.185 was amended and minor                                                             
consuming offenses were removed.  That statute will need to be                                                                  
amended again to include the misdemeanor offenses in HB 151.                                                                    
                                                                                                                                
CHAIRMAN TAYLOR asked if a new section would have to be added.                                                                  
                                                                                                                                
MS. CARPENETI said she believes so.                                                                                             
                                                                                                                                
SENATOR DONLEY moved a conceptual amendment (Amendment 2) to                                                                    
incorporate a new section to do what Ms. Carpeneti recommended.                                                                 
                                                                                                                                
SENATOR HALFORD said he has no objection to that motion, however he                                                             
would like to know how the administrative and court revocations are                                                             
related, and whether the same violation can cause an action at both                                                             
levels.                                                                                                                         
                                                                                                                                
MS. CARPENETI said the offenses are generally concurrent with each                                                              
other.                                                                                                                          
                                                                                                                                
CHAIRMAN TAYLOR agreed they must be concurrent as far as the effect                                                             
of the sentence.  He clarified that the only difference is that the                                                             
bill contains a provision, that the Administration opposes, that                                                                
provides if a person is dismissed or found not guilty from the                                                                  
criminal suit, the dismissal acts to also remove the administrative                                                             
revocation that was imposed so that one does not have to go to                                                                  
court twice.                                                                                                                    
                                                                                                                                
SENATOR HALFORD questioned whether different standards of proof                                                                 
apply to an administrative proceeding versus a court proceeding.                                                                
                                                                                                                                
CHAIRMAN TAYLOR said yes, the standard of proof for an                                                                          
administrative hearing is a preponderance of evidence, and for the                                                              
court hearing it is guilty beyond a reasonable doubt.  He explained                                                             
that this provision will prevent a person who is found not guilty                                                               
beyond a reasonable doubt from having his/her license revoked under                                                             
the civil aspects which come out of the administrative system.                                                                  
                                                                                                                                
Number 291                                                                                                                      
                                                                                                                                
MS. CARPENETI added the Department of Law is also concerned with                                                                
the provision in paragraph 2 on page 5 because it wants to keep the                                                             
administrative and court revocations as separate as  possible.  The                                                             
Department of Law believes its position in litigating                                                                           
constitutionality of the "use it-lose it" law is that it is a                                                                   
remedial aspect, not a punitive one.                                                                                            
                                                                                                                                
CHAIRMAN TAYLOR asked if there was any objection to adopting                                                                    
Amendment 2.  There being no objection, the motion carried.                                                                     
                                                                                                                                
MR. FINDLEY suggested amending AS 28.35.280 to add controlled                                                                   
substances to cover driving under the influence of drugs.  He                                                                   
clarified that Section 8 on page 5 would need to be amended.                                                                    
                                                                                                                                
SENATOR HALFORD asked if there is a term of art that excludes                                                                   
prescription drugs from controlled substances.                                                                                  
                                                                                                                                
SENATOR DONLEY moved to adopt a conceptual amendment (Amendment 3)                                                              
to add a violation for driving while under the influence of a                                                                   
controlled substance into the appropriate section of the bill.                                                                  
SENATOR HALFORD objected and asked for an answer to his question                                                                
about the definition of controlled substances.                                                                                  
                                                                                                                                
SENATOR DONLEY asked if prescription drugs fall under the                                                                       
definition of controlled drugs.                                                                                                 
                                                                                                                                
SENATOR HALFORD explained the general term, "controlled drugs"                                                                  
includes prescription drugs.                                                                                                    
                                                                                                                                
MS. CARPENETI informed committee members AS 28.35.280(a) would need                                                             
to be amended to exclude prescription drugs.                                                                                    
                                                                                                                                
SENATOR HALFORD said he agrees with the amendment but wants to make                                                             
sure that it refers to contraband drugs only, not prescription                                                                  
drugs.                                                                                                                          
                                                                                                                                
CHAIRMAN TAYLOR asked Ms. Carpeneti to work with the legal drafter                                                              
to make sure that intent is accomplished.  MS. CARPENETI agreed to                                                              
do so.  There being no objection to Amendment 3, it was adopted.                                                                
                                                                                                                                
Number 349                                                                                                                      
                                                                                                                                
MR. JOHN HYDE made the following comments via teleconference from                                                               
his home in Soldotna.  He informed committee members he does not                                                                
have a copy of version Q.  His primary concern is that the                                                                      
administrative hearings will be used for the first two offenses.                                                                
Administrative hearings under AS 28.15.183 are not evidentiary                                                                  
hearings and rightly so.  The hearing officers at DMV are not                                                                   
qualified to hold evidentiary hearings.  Due to increasing pressure                                                             
from the public, and legislative activities, DMV has expanded its                                                               
role and has created a situation in which its hearings are becoming                                                             
evidentiary and it hears evidence arbitrarily.  The arbitrary and                                                               
capricious application of the law is unconstitutional.                                                                          
                                                                                                                                
MR. HYDE gave an example of how evidence, obtained in an illegal                                                                
entry, was used in a case and was the basis for a ruling in an                                                                  
administrative hearing.  He believes DMV is vigorously trying to                                                                
preserve its position in this law, and it is trying to strenuously                                                              
convict young people of violating a law when it is violating the                                                                
law it is trying to preserve.                                                                                                   
                                                                                                                                
CHAIRMAN TAYLOR told Mr. Hyde that is why the bill takes the                                                                    
violations out of the administrative process after the first two                                                                
offenses and places the violator before a judge who understands the                                                             
term, "capricious and arbitrary."                                                                                               
                                                                                                                                
MR. HYDE commended the committee on its efforts but said he would                                                               
prefer that the all offenses get court hearings rather than                                                                     
administrative hearings.                                                                                                        
                                                                                                                                
ROBERT BUTTCANE, Department of Health and Social Services (DHSS),                                                               
commented on two issues.  If minor consuming and minor possession                                                               
of alcohol are recriminalized through HB 151, it would be                                                                       
appropriate to support the court in providing it with some type of                                                              
an assessment process.  He asked the committee to fund the Kiddie                                                               
ASAP program enacted by the Legislature last year.  Approximately                                                               
$100,000 for administrative costs and $400,000 for community grant                                                              
programs would be an adequate amount to take care of this                                                                       
population.  His second point was that an estimated 1,000 young                                                                 
people will be subject to a misdemeanor offense and jail time if HB
151 passes.  Those youth will be placed in youth facilities which                                                               
are already full.  DHSS might have to request a supplemental                                                                    
appropriation to pay for overtime for detention staff if the court                                                              
takes an aggressive stance toward jail time.                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR said both issues are unrelated to this bill because                                                             
an appropriation cannot be attached to it, but the Senate Judiciary                                                             
Committee supported the Kiddie ASAP concept last year, so if DHSS                                                               
needs a supplemental as a result of the court system's actions, he                                                              
will argue in favor of it.                                                                                                      
                                                                                                                                
SENATOR HALFORD moved SCSHB 151(JUD) as amended from committee with                                                             
individual recommendations.  Without objection, the bill moved from                                                             
committee.                                                                                                                      

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