Legislature(2001 - 2002)
02/20/2002 01:42 PM Senate JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 40-REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT MS. ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law (DOL), said HB 40 addresses a problem that does not arise very often but when it does it creates a serious public safety problem. It also can create a lot of anguish in the family of victims who are killed in automobile accidents. She described the situation when a motor vehicle accident is caused by a person who violates a traffic law but does not commit a crime but non-the less a death is caused. HB 40 addresses this situation by requiring the court to revoke the driving privileges for one year of a person who is convicted of violating a traffic law and the violation was a significant contributing cause of an accident resulting in the death of another person. MS. CARPENETI explained that specifically before this license revocation can occur: · First a judge must find beyond a reasonable doubt that the person committed the traffic violation. · Then by clear and convincing evidence the court must find; o The person was operating the motor vehicle that was involved in the accident. o The accident caused the death of another person. o The violation of the traffic law was a significant contributing factor in causing the accident and death. She said the bill does allow a court to consider a request by the driver for limited driving privileges. If the person can establish that his or her ability to earn a living would be severally impaired by loss of driving privileges the court can issue a limited license for that purpose. In the House Judiciary Committee they added another possibility for a limited license. If the person can establish that his or her ability would be severely impaired to give assistance as a primary care giver to another person who is disabled the court could entertain a request for a limited license. MS. CARPENETI said when people drive in an unsafe way even if they do not commit a crime but cause the death of another person their privilege to drive should be revoked to protect other drivers on the road, their passengers and people walking on roads. CHAIRMAN TAYLOR explained he did not have a problem with the thrust of the bill. It was again a mandatory minimum, which he always opposed in the court system, because he thought mandatory minimums become the sentence. For example they have a three-day mandatory minimum on drunk driving so what does every single drunk driver get, three days. He said it is called mandatory minimum but judges never seem to read the word minimum. They do not give longer sentences because they get scared as soon as they pop somebody for ten or fifteen days on a first offense every public defender is going to make certain that they are disqualified from ever doing a drunk driver case. Public defenders probably should act on the behalf of their client. He said these things sound like they are somewhat discretionary within the law but once they establish these parameters of mandatory revocation they become the only revocation. He said he was concerned about that aspect of it. CHAIRMAN TAYLOR gave an example of the other aspect that concerned him. A single mom commuting home from work has picked both her kids up. She slides on the ice and has a one-car accident. She doesn't impact anyone else. The car flips around a couple of times and one of the children is killed. Now she just lost one of her children and on top of that somebody is going to say she had been driving to fast for road conditions or whatever because every officer that shows up at a wreck site feels compelled to find some violation for the wreck having occurred. Accidents don't happen anymore it was because you violated something. He asked if they would suspend her driver's license for one year when she has already lost a child in this process. He said he was not talking about some drunk driver or someone that is negligently driving and killing some stranger. MS. CARPENETI said that was correct, if she was driving drunk they could revoke her license for that reason. She said she did share his frustration about mandatory minimums. She thought it was shocking that everybody who is convicted goes to jail for three days because drunk driving cases can be really varied. She said in a sense this was not a mandatory minimum because there is no range. It is a mandatory one-year. They don't range from one to five years it's a one-year revocation. MS. CARPENETI said the person Chairman Taylor was talking about would have to be convicted and proven to have violated the traffic ordinance beyond a reasonable doubt by a court. She would be given a court appointed council and a jury trial in the endeavor to determine whether or not she was guilty of the traffic violation. Then the court would have to find by clear and convincing evidence that whatever violation she was convicted of was a significant contributing factor to the death of her child. Ms. Carpeneti understood that would be a terrible situation for any person to be in but maybe she should not be driving her other child who is still alive. CHAIRMAN TAYLOR said you are going to keep her off the road for one year. That is what you are going to do. MS. CARPENETI said under the circumstances but the court has to jump through many hoops before it can come to that determination. By the possibility of a driver's license loss she would have the right to court appointed counsel and a trial by jury and some of the other guarantees attended on a criminal case. CHAIRMAN TAYLOR said he did not think the committee had any concerns or objections to the 25 year old doing a 100 mph down the Glen Highway and crossing the meridian or something. In those instances the prosecutors office, our district attorney would normally be charging negligent homicide, seeking a felony charge and some serious time in jail. He said as far as he knew our people are not reluctant to do that. This person is distracted for a moment and instead of stopping on the yellow light has gone on through it and t-boned somebody in the middle of an intersection. Accidents do happen and yes there may have been a violation but in this instance all you need prove is any violation of any traffic law. MS. CARPENETI said it would have to be a moving violation. CHAIRMAN TAYLOR said those are his concerns it is not that he does not support the concept, he does. He thought it was probably another tool in the toolbox that they may need but he had those concerns and appreciated her answers. SENATOR THERRIAULT said he appreciated Chairman Taylor's stated concerns because he had a lot of the same ones. Accidents do happen but the person who puts the pedal to the metal, that is not an accident, that is a choice. The person that drinks too much has made a choice. The person that is spinning his wheels and doing the brodies, that is a choice. He said the scenario that Chairman Taylor laid out is one, and there are others, where this is just going too far. SENATOR THERRIAULT said last year Representative Fate and Representative Coghill and himself met with a group of constituents in his district that live out on Chena Hot Springs Road. They expressed a lot of concern with the fact that the privilege on our highways was so often used as a club to try and shape the actions of the public. It is little consolation to them when you say, we have not taken away your right to travel about the community when it is 40 below zero and you live out at 40-mile Chena Hot Springs Road. If they cannot drive their car you have taken away their access, their ability, because many times they can not even go to a neighbor next door because the neighbor is maybe a mile away. He had concerns over the need for the legislation. MS. CARPENETI said it was brought to their attention by people who have lost loved ones under these circumstances. For example where the driver of a car had fallen asleep. This is a really common problem not only in Alaska but throughout the country. It is a common driving problem to fall asleep and then cross over the centerline and kill somebody. They may only have a small fine for doing so. It seemed to her for the safety of the driving public it would be worthwhile for that person to take some time off driving and maybe jump through the hoops necessary to get a drivers license back after it had been revoked before he or she thinks about driving when he or she is to tired or takes their eyes off the road and causes such serious damage. She said there were people on the teleconference that might help inform the committee of the concerns that they brought to DOL. SENATOR ELLIS asked about the language "contributing factor, significant factor" and asked her to talk them through that. MS. CARPENETI explained it is on page 2 of the bill. These terms are terms judges use and apply all the time. The court must find a person guilty of violating the traffic law by proof "beyond a reasonable doubt" and the person must have a lawyer and the right to a jury trial if he or she chooses. If a person is convicted of a traffic law the court will revoke the privilege to drive if the court finds by "clear and convincing evidence". "Clear and convincing evidence" is a higher standard than "beyond a reasonable doubt". You have to clearly show that the individual was driving the motor vehicle in a car that was involved in an accident. The accident caused another person's death and the violation of the traffic law was a significant contributing cause of the accident. So the court would have to make a finding by clear and convincing evidence, the real crux of it is, that the violation of the traffic law was the significant contributing cause of the accident that resulted in the death of another person in order to loose their license under this bill. These are term that courts use all the time; significant, contributing cause. She did not think there would be a problem with definitions. SENATOR DONLEY asked what happened to these people after they lost their license and they go ahead and drive without it. MS. CARPENETI said they would hope they did not but if they did then they would be committing a crime. SENATOR DONLEY asked what was the punishment for that crime. MS. CARPENETI said she thought that was a maximum of one year in jail. SENATOR DONLEY said that was the maximum but was there any minimum. MS. CARPENETI said she did not believe so. CHAIRMAN TAYLOR said he thought there was additional revocation of license. MS. CARPENETI said for conviction there could a revocation of license and she thought for the first one it was only 60 days. CHAIRMAN TAYLOR said they used to have a mandatory minimum on that. It was like five or ten years and we had people caught driving that couldn't get their license for 30 some years. MS. CARPENETI said yes that used to be the most serious mandatory penalty in the state in the 70's. CHAIRMAN TAYLOR asked if she thought right now, in answer to Senator Donley's question, it was probably 60 days for the first violation. MS. CARPENETI said that was right. For conviction of the first offense and then one year for the second and three years for the third. SENATOR DONLEY asked when you are saying 60 days are you saying the maximum allowable. MS. CARPENETI said additional revocation of license for conviction. SENATOR DONLEY said he remembered voting against a piece of legislation about ten years ago that revoked an existing law where it was a mandatory ten days in jail if you drove on a suspended license. MS. CARPENETI said that was a time before they had mandatory terms. That was the most serious mandatory sentence in the State of Alaska in the 70's. SENATOR DONLEY said now we don't have any minimum for a first time violation for driving without a license. MS. CARPENETI said she was looking at the revocation. Under AS 28.15.181 the first offense would be 60 days revocation of license. SENATOR DONLEY said and no mandatory jail time. Of course they have already lost their license for a year then we take the license for another 60 days. CHAIRMAN TAYLOR said Senator Donley brought up a major issue, directly related to this. They have set up a lot of laws so they are going to result, especially with Driving While Intoxicated (DWI), in revocation of a driving privilege or the opportunity to get one for some term of years. They just keep driving; they just go use somebody else's car and they just keep driving. It is kind of like this hoop thing; you are always trying to catch up with the end of it. From his discussions with state troopers and city police officers it is a continuing and expanding problem. They are not insured, they don't have a drivers license but they are out there driving to and from work and they may be legally driving down the road but they are illegal and should not be there. He thought it is a concern many of them shared. MS. CARPENETI said they shared that concern. This bill doesn't necessarily address repeat drivers driving with their license suspended or revoked but that is a concern because we all drive. SENATOR THERRIAULT said along that line just look at the police blotter in the newspaper. They get caught for drunk driving time after time and also for a suspended license. That group of people, because of the drinking, seems to get caught more often. But the person who just ran through a red light or slipped off the road and had a roll over not because they were hot roding or anything, they are not necessarily going right back into the system because they had a perfect driving record for 30 years and just hit the slick spot the one time. They are going to be out there driving with no license anyway. If we have learned one thing from the DWI situation it is that they are going to drive anyway. He said he understood the frustration of family members seeing somebody who has caused the loss of a loved one being able to continue to drive. But he thought this sort of a solution really did not get them anywhere. SENATOR COWDERY said if you get pulled over for a DWI and refuse to do the breathalyzer that was an automatic loss of license but it was not proven they were really under the influence. They can't take breath samples without a search warrant unless there is an accident involved and somebody is killed. He thought the penalties that exist now did not solve anything. He thought they should have far more stringent penalties. MS. CARPENETI said there are a lot of problems with DWI and refusing a breathalyzer. This legislation really is just focused on maybe six to ten accidents that happen a year that result in a death to a person by another person who was not committing a crime. They were not committing reckless driving but may have been driving negligently. For that reason they are not safe enough drivers. They caused a death because of their careless driving even though it did not arise to reckless driving or criminal negligent homicide or a crime. But they were driving in a careless manner and for that reason it seems reasonable to take their license away for a period of time so maybe next time they won't drive negligently. SENATOR COWDERY said taking their drivers license away really does something. Does that mean they are going to take a cab or have somebody else drive them or does this mean if you don't catch them they are going to drive, if you do catch them then what. MS. CARPENETI said if they did drive they are committing a crime. We hope this would have some effect on drivers who loose their license. She said she was sure there are a lot of people who don't pay attention to court orders and revocation of license but there are people who do. MR. MARK CAMPBELL, Palmer resident, testified in support of HB 40. He shared from their own experience having lost their son in an accident. In their circumstances they had a 19-year-old son and he had a car full of kids with him. Another vehicle was speeding in the opposite direction and that driver lost control of their vehicle and collided with their son's car killing two kids and injuring four others. They found there was no recourse whatsoever. Within one year the same young man that caused that accident had another accident killing two other young men. They feel there needs to be something if you are not under the influence of alcohol or drugs but yet you are acting irresponsible with a vehicle. The courts need to determine whether it is acting outside of a reasonable manner. They lost a son, their good friends lost their son, and four other children were hurt. The young man was speeding, lost control of his vehicle and got a ticket for speeding. That was it, a ticket for speeding. As a family of a victim he wanted to see that there was something that would cause an individual to take some time away from the privilege of driving. MR. CAMPBELL said there needs to be something for the victim's family from the person causing the loss. Sharing from his experience they found there was nothing they could do. Then they were terribly grieved over the fact that within a year another two lives were lost in that situation. CHAIRMAN TAYLOR said he did not understand on the first accident why he was not charged with negligent homicide. Speeding alone resulting in death should have been sufficient grounds for negligent homicide and that is a felony. He asked if he was charged for negligent homicide on the second incident. MR. CAMPBELL said on the second incident he was driving the vehicle and lost control. The other two boys that were killed were not able to testify so there was no witness. In the first situation the only eyewitnesses were in a vehicle that was in front of him. They viewed his speed coming from behind so rapidly that driver pulled over. The only way they could testify that they felt he was speeding was through a rearview mirror so again no eyewitness. Of course no one was there to actually clock that he was speeding so they could only judge it by the fact there were no skid marks on the highway. He just simply lost control of his pickup. CHAIRMAN TAYLOR said that was a terrible situation and was sorry that Mr. Campbell had to come in and testify. He said he thought Mr. Campbell understood the concerns the committee had raised. He asked if the family contemplated any form of civil liability. MR. CAMPBELL said they did go to court not as a civil suit but simply on his driving ticket. They asked that rather than he being able to just pay the ticket they felt the court should have him serve community service in the area of hospice care or something like that. Given the special circumstances the court did that and the young man did not argue. He was a young man also, 19 years old, and they did not want to plague his life trying to pursue some sort of payment for their loss. But Mr. Campbell felt in this type of situation the loss of license for a year would have been excellent and could have saved two other lives and possibly cause some growing up. MR. ALBERT TAYLOR said his son was killed by the driver of a motor vehicle. That driver chose to operate his vehicle in a careless, irresponsible and unsafe manner. He felt strongly that a person operating a vehicle carelessly, breaking traffic laws and killing others should have their privileges to drive revoked. He urged the committee to pass HB 40. It would help make our roads safer. CHAIRMAN TAYLOR said he was sorry for his loss and thanked him for testifying. MS. MARY MARSHBURN, Director, Division of Motor Vehicles (DMV), said Ms. Carpeneti adequately covered the history or reasons behind the bill as well as the specifications of the bill itself and what it intends to do. She addressed two items. · The fiscal note reflects there are a very small number of these incidences each year. Obviously very painful for the people who loose family members in these crashes. · In answer to Senator Donley's question about driving without a license. Driving without a license carries an additional ten days in jail and a minimum of 90 days additional revocation, which does not run concurrent to any existing revocation. SENATOR DONLEY said he did not think there was any mandatory jail time for a first time conviction while license is suspended. MS. MARSHBURN said she would be happy to look it up but that information came from DMV staff. CHAIRMAN TAYLOR said the committee would look into that also. He said there may be some misunderstanding about how the law is either applied or how it is currently written. TAPE 02-05, SIDE B SENATOR DONLEY asked Ms. Carpeneti if it a mandatory one-year suspension no matter what the nature of the traffic violation was if there is clear and convincing evidence that the elements are here. MS. CARPENETI said that was correct but they have to have a conviction and then clear and convincing evidence that the traffic violation was a significant contributing factor. SENATOR DONLEY said this could be an improper lane change or a failure to signal and there is no discretion on the part of the judiciary. He said in the eight years he had been in the legislature they had tried a lot of mandatory sentencing proposals. He thought the executive branch had opposed every mandatory sentence. The executive branch wanted to go in the opposite direction and have less mandatory sentencing. MS. CARPENETI said this was a license revocation not a result of a conviction of a crime. It is a license action and the purpose is to make our roads safer. It is not necessarily completely to get this particular person off the road but to make our roads safer. SENATOR COWDERY asked in her mind what would happen if in fact the one-year revocation was imposed but during that year period he was caught driving again. MS. CARPENETI answered he could be charged with driving with a license suspended. If he was driving and he had a limited license that would be another issue. It depended on the circumstances. This revocation would be concurrent with any other revocation in law. SENATOR DONLEY said he noticed the CS bill had been referred to the Rules Committee. He asked if that was accurate. It was originally a Rules Committee bill and he didn't understand why it said it was referred to the Rules Committee. He had some question about the fiscal note and wanted to know if it was coming to the Finance Committee and he could not tell that from the bill document. He thought there was something inaccurate about the referral section. It did not say judiciary but they were there hearing it. CHAIRMAN TAYLOR said the referrals are judiciary and then finance. That was on the referral sheet that came with it. He said he would entertain a motion. No motion was made. SENATOR ELLIS asked for an at ease. TAPE 02-06, SIDE A [Recorded from the net] CHAIRMAN TAYLOR called an at ease. CHAIRMAN TAYLOR reconvened the meeting and announced he would hold the bill for a week to try to resolve some of the concerns. He stated it was his intention to move the bill from committee.