03/29/2001 10:45 AM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 29, 2001
10:45 a.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
Representative Albert Kookesh
COMMITTEE CALENDAR
HOUSE BILL NO. 4
"An Act relating to offenses involving operating a motor
vehicle, aircraft, or watercraft while under the influence of an
alcoholic beverage or controlled substance; relating to implied
consent to take a chemical test; relating to registration of
motor vehicles; relating to presumptions arising from the amount
of alcohol in a person's breath or blood; and providing for an
effective date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 4
SHORT TITLE:OMNIBUS DRUNK DRIVING AMENDMENTS
SPONSOR(S): REPRESENTATIVE(S)ROKEBERG
Jrn-Date Jrn-Page Action
01/08/01 0024 (H) PREFILE RELEASED 12/29/00
01/08/01 0024 (H) READ THE FIRST TIME -
REFERRALS
01/08/01 0024 (H) TRA, JUD, FIN
02/22/01 (H) TRA AT 1:00 PM CAPITOL 17
02/22/01 (H) Heard & Held
02/22/01 (H) MINUTE(TRA)
02/27/01 (H) TRA AT 1:00 PM CAPITOL 17
02/27/01 (H) Moved CSHB 4(TRA) Out of
Committee
02/27/01 (H) MINUTE(TRA)
02/28/01 0470 (H) TRA RPT CS(TRA) NT 1DNP 2NR
2AM
02/28/01 0471 (H) DNP: SCALZI, NR: KAPSNER,
KOOKESH;
02/28/01 0471 (H) AM: MASEK, KOHRING
02/28/01 0471 (H) FN1: (ADM); FN2: (ADM)
02/28/01 0471 (H) FN3: (COR); FN4: (CRT)
02/28/01 0471 (H) FN5: (HSS); FN6: (HSS)
02/28/01 0472 (H) FN7: (HSS); FN8: (HSS)
02/28/01 0472 (H) FN9: (LAW); FN10: (DPS)
02/28/01 (H) JUD AT 1:00 PM CAPITOL 120
02/28/01 (H) Heard & Held
02/28/01 (H) MINUTE(JUD)
03/09/01 (H) JUD AT 1:00 PM CAPITOL 120
03/09/01 (H) Heard & Held
03/09/01 (H) MINUTE(JUD)
03/12/01 (H) JUD AT 2:30 PM CAPITOL 120
03/12/01 (H) Heard & Held
03/12/01 (H) MINUTE(JUD)
03/14/01 (H) JUD AT 2:15 PM CAPITOL 120
03/14/01 (H) Scheduled But Not Heard
03/16/01 (H) JUD AT 1:00 PM CAPITOL 120
03/16/01 (H) Heard & Held
03/16/01 (H) MINUTE(JUD)
03/19/01 (H) JUD AT 1:00 PM CAPITOL 120
03/19/01 (H) Heard & Held
MINUTE(JUD)
03/21/01 (H) MINUTE(JUD)
03/23/01 (H) JUD AT 1:00 PM CAPITOL 120
03/23/01 (H) Heard & Held
MINUTE(JUD)
03/26/01 (H) JUD AT 1:00 PM CAPITOL 120
03/26/01 (H) Heard & Held
03/26/01 (H) MINUTE(JUD)
03/28/01 (H) JUD AT 1:00 PM CAPITOL 120
03/28/01 (H) Heard & Held
MINUTE(JUD)
03/29/01 (H) JUD AT 10:40 AM CAPITOL 120
WITNESS REGISTER
BLAIR McCUNE, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: During discussion of HB 4, answered
questions relating to proposed Amendment 31.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: During discussion of HB 4, answered
questions relating to proposed amendments.
ALVIA "STEVE" DUNNAGAN, Lieutenant
Division of Alaska State Troopers
Department of Public Safety
5700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: During discussion of HB 4, answered
questions relating to proposed Amendment 31.
JANET SEITZ, Staff
to Representative Norman Rokeberg
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: During discussion of HB 4, answered
questions relating to proposed amendments.
MIKE FORD, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: During discussion of HB 4, answered
questions about proposed Amendments 34 and 25.
DAVID STANCLIFF, Staff
to Representative Scott Ogan
Alaska State Legislature
Capitol Building, Room 108
Juneau, Alaska 99801
POSITION STATEMENT: During discussion of HB 4, answered
questions on behalf of Representative Ogan relating to proposed
Amendments 34 and 35.
LAUREE HUGONIN, Director
Alaska Network on Domestic Violence and Sexual Assault (ANDVSA)
130 Seward Street, Room 209
Juneau, Alaska 99801
POSITION STATEMENT: During discussion of HB 4, testified on
proposed Amendment 25 and responded to questions.
ACTION NARRATIVE
TAPE 01-46, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting (which had been recessed on 3/28/01) back to
order at 10:45 a.m. Representatives Rokeberg, James, Coghill,
Meyer, and Berkowitz were present at the call to order. Chair
Rokeberg called an at-ease from 10:46 a.m. to 10:55 a.m.
HB 4 - OMNIBUS DRUNK DRIVING AMENDMENTS
Number 0037
CHAIR ROKEBERG announced that the committee would take up
amendments for HOUSE BILL NO. 4, "An Act relating to offenses
involving operating a motor vehicle, aircraft, or watercraft
while under the influence of an alcoholic beverage or controlled
substance; relating to implied consent to take a chemical test;
relating to registration of motor vehicles; relating to
presumptions arising from the amount of alcohol in a person's
breath or blood; and providing for an effective date." [Before
the committee was CSHB 4(TRA).]
Number 0073
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 27,
which read [original punctuation provided]:
Page 16, lines 11 - 31, following "convicted"
Delete all material
Page 17, lines 1 - 4
Delete all material
REPRESENTATIVE BERKOWITZ asked that this motion include a
technical amendment such that Amendment 27, as amended, would
read:
Page 16, lines 11 - 31, following "convicted"
Delete all material
Page 17, lines 1 - 10
Delete all material
Number 0090
CHAIR ROKEBERG asked whether there were any objections to
Amendment 27, as amended. There being no objection, Amendment
27, as amended, was adopted.
REPRESENTATIVE BERKOWITZ announced he would withdraw Amendments
28, 29, and 30. He warned, however, that there was still need
for conforming changes to Section 27.
CHAIR ROKEBERG noted that he would be giving the drafter
instructions regarding confirmation and conformance.
Number 0193
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 31,
which read [original punctuation provided]:
Page 24
Delete "Lines 19 - 21"
Renumber sections accordingly
REPRESENTATIVE BERKOWITZ then referred to language which said:
"Nothing in this section shall be construed to restrict searches
and seizures under a warrant issued by a judicial officer."
Number 0201
REPRESENTATIVE COGHILL objected for the purpose of discussion.
Number 0255
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration, testified via
teleconference and said that "this" involves the Sosa case. He
noted that [the PDA] feels that the Sosa decision was correct,
and that the decision reaffirmed what the legislature had said a
number of years ago, that the way to punish people who refuse to
take a breathalyzer test is via the refusal statute. He
paraphrased what the state said as: "You have implied consent;
you have to take the breathalyzer. If you refuse to do that,
you're guilty of refusal, which is a crime that's of equal
punishment as driving while intoxicated [DWI]."
MR. McCUNE explained that the reasoning behind this was to avoid
requiring police officers and corrections officers to strap
people down in order to take blood tests. He added that this
was a dangerous thing for everybody concerned, particularly in
light of blood-borne pathogens. He noted that the state
currently has the authority to get search warrants for blood
when an accident involves serious injury or death. He concluded
by saying that this is the current state of the law, and that
[the PDA] thinks the law should stay that way, rather than
change back to allowing search warrants in DWI cases [via
Section 37 of CSHB 4(TRA)].
Number 0424
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), argued that in a lot of areas of the state, there are
practical problems with collecting evidence - sometimes the
intoximeter machines don't work, and sometimes those machines
are just not available. He related a situation in the Bethel
area where, in place of a breath test, the officer attempted to
get a search warrant [for a blood test] but was denied because
of the way the statute was written. He said he thought that
when law enforcement officers face the difficult situation of
being unable to collect evidence due to a lack of functioning
equipment, they should have the latitude to get search warrants.
MR. GUANELI said that for 200 years, search warrants have been
the traditional means used in this country to gather evidence.
It requires that an application be presented to the judge
whereby he/she then determines whether a search can occur, and
under what conditions. He added that one of the conditions for
drawing blood is that it needs to be done by someone with
medical training. [Section 37] simply allows officers to use
the traditional method for gathering evidence, and the only
reason it can't be done is because of the court's interpretation
[via the Sosa decision] of current statute regarding implied
consent. He opined that [Section 37] is a good fix for the
practical problems that officers have to deal with on a day-to-
day basis, and that it is not fair to say that the refusal
statutes are adequate - if a breathalyzer is not available, then
neither is the charge of refusing to take a test.
REPRESENTATIVE BERKOWITZ said that essentially what he was
hearing was that if the state resource, that is, the
intoximeter, is broken, and the state hasn't made the effort
necessary to ensure that equipment is functioning, then it is OK
to perform a very invasive procedure against an individual. He
remarked that laws are complicated and involve a weighing and
balancing of different features. One of the most critical
features of a criminal trial, he continued, is the burden of
proof; it is the state's responsibility to come forward with the
evidence and with the resources necessary to acquire evidence.
And if the state has not ensured that the intoximeters are
functioning correctly, that is poor justification for sticking a
needle in somebody, or doing that kind of invasive procedure, he
opined. He noted that commonly, the examples used are the ones
in which the suspect is guilty, but, he suggested, "think of the
case where the suspect isn't guilty." He added that one of the
hard things to explain to people about criminal law is that it
protects the innocent, and by ensuring that innocent people are
not subject to undue invasions of their privacy, guilty people
sometimes go free. Saying "because the intoximeter is broken,
it's OK to invade people's privacy" is a step away from the
direction he feels comfortable going in, he asserted.
Number 0703
REPRESENTATIVE COGHILL noted that, certainly, there were
timeline issues, but an officer would still have to go before a
judge [for a search warrant]; thus, he suggested, the rights of
the accused would still be protected. He asked what type of
criteria the judge considers before issuing a search warrant.
MR. GUANELI explained that the primary standard used is whether
there is probable cause to believe that a crime has been
committed and that there is evidence of that crime that exists
such that the state should be allowed to seize that evidence.
He acknowledged, however, that in situations where the evidence
can be collected by other alternatives, the court generally
requires the state to use them instead of a search warrant.
Thus the courts look at: one, are there sufficient grounds to
believe that an individual was driving drunk; two, is there
evidence to be obtained; and three, are there other ways to
obtain that evidence. Another point to consider, he said,
notwithstanding Representative Berkowitz's comments about
sticking needles in people, is that perhaps thousands of times a
year, DWI offenders make use of provisions under Alaska law that
allow an independent test to be conducted by having blood drawn
when they do not trust the results of the
intoximeter/breathalyzer machine.
MR. GUANELI said he thought there were adequate safeguards [to
peoples' privacy] under the law. He also noted that it is real
easy to think of "the state" as having resources to spend on
equipment, when in most situations it is really the municipal
police departments that are picking up the financial burden of
acquiring and maintaining these machines. He added that it is
not a case of police departments' simply allowing the machines
to fall into disrepair and remain so; it is much easier on
everybody concerned to have functioning equipment, but sometimes
that is just not possible. He reiterated that [Section 37]
fixes situations wherein equipment cannot be used because of a
malfunction.
REPRESENTATIVE COGHILL mentioned that some types of search
warrants were easier to obtain than others.
MR. GUANELI reported that the courts in Alaska have recognized
that it is often difficult to get before a judge to obtain a
search warrant, and thus there are provisions for telephonic
search warrants to be issued through a judge who is on call and
who listens to the facts of the case in the form of an officer's
sworn testimony. If all of the aforementioned criteria are
satisfied, the search warrant can be issued in a routine manner.
He reiterated that it is not that machines that are in order are
not being used in favor of obtaining a search warrant - it is
simply that there are situations in which the machines break
down.
Number 0996
REPRESENTATIVE BERKOWITZ, on the point of the independent tests,
said it is a red herring when used in the context of this
argument [regarding Amendment 31]; an individual who is a
suspect at that time and who requests the independent test is
voluntarily choosing to get a blood sample drawn, and he argued
that was very different from being in the circumstance where the
state (or law enforcement of the municipality) is compelling
someone to take a test. He said it is very important that when
the state obtains evidence, it do so by the least intrusive
means possible. In looking at the necessity for acquiring this
evidence, whenever a DWI is charged it is charged under two
theories: one is the presumptive blood alcohol level, and the
other is the "impaired" theory, which is based on the totality
of circumstances. Thus, in every DWI case, while it is very
nice to have the blood alcohol level, it is not a necessity to
have it in order to make the case; therefore, it doesn't seem
appropriate for [the state] to take the extremely intrusive step
of withdrawing blood by compulsion.
CHAIR ROKEBERG noted that while the refusal statute could be
used in situations where there was a functioning intoximeter, if
that machinery were broken and could not be used, all that would
be left for prosecution purposes would be the impairment
statute.
REPRESENTATIVE BERKOWITZ said that was correct. He said that
while the burden of proof is one of the defining features of a
criminal trial, the other defining feature is the presumption of
innocence. It is a very dangerous thing, he warned, when people
are compelled to give evidence against themselves. He explained
that although blood is called evanescent evidence because, over
time, the alcohol level disappears, there are already provisions
that allow for the compulsory taking of samples - hair
clippings, fingernail clippings, and DNA samples - under the
appropriate circumstances. But, usually, those types of samples
are only taken in circumstances surrounding very serious
offenses, and he noted that Mr. Guaneli had indicated that there
are already provisions that allow for the compulsory taking of
blood samples in instances of serious accidents. He then
reminded the committee that this discussion was in relation to
misdemeanor offenses, and he offered that it is a big step to
say that in misdemeanor cases, offenders are going to be
compelled to give blood, even against their will, even though
there is an alternative theory under which cases can be brought,
and even though the state has not taken the necessary steps to
maintain the instruments that perform the blood/breath alcohol
test in the least intrusive manner possible.
REPRESENTATIVE COGHILL asked at what point a search warrant
would be issued for a misdemeanor offense.
Number 1218
MR. GUANELI explained that there were many misdemeanor
[offenses] that result in search warrants being issued. He
remarked that it is unfair to simply say that [Section 37] will
apply only in misdemeanor cases; it may be used in felony cases
as well. He relayed that both the constitution and statutes say
that when there is evidence of a crime, be it misdemeanor or
felony, a judge, after reviewing the evidence and taking all the
considerations into account, can issue a warrant.
Notwithstanding the images called forth by Representative
Berkowitz of an individual strapped to a gurney and struggling
[to avoid the needle], as a practical matter that is simply not
the way these situations unfold; in most instances, he
continued, after the search warrant is issued, the person just
voluntarily gives blood. But, he added, in those rare instances
when somebody is combative, no medical professional would be
willing to take blood under those circumstances, and this is
fine with the prosecutor; this reluctance to give blood under a
search warrant is simply used as evidence in favor of the
prosecution.
Number 1311
ALVIA "STEVE" DUNNAGAN, Lieutenant, Division of Alaska State
Troopers, Department of Public Safety, said he agreed with Mr.
Guaneli's presentation: If a suspect refused to comply with a
search warrant authorizing that a blood sample be taken, there
would not be a fight in the emergency room to force compliance.
In response to the question of whether a search warrant would be
sought only in cases where the intoximeter in an area is not
working, he acknowledged that there may be occasions in some of
the smaller jurisdictions that do not have an intoximeter of
their own, where it would be more feasible to get a search
warrant from the local magistrate rather than fly the suspect
into an area that has an intoximeter.
MR. McCUNE argued that taking blood from a reluctant individual
who is intoxicated, even with a court order (which is what a
search warrant is) directing that this be done, is probably not
the best idea in the world. He further argued that the
legislature had already taken this into consideration when it
enacted the implied-consent laws; if there is no serious injury
or death, [the state] should rely on the refusal statutes. He
recalled testimony from a prior meeting [3/9/01] indicating that
DataMaster machines would be replacing intoximeters and that the
DataMasters were hardier machines, and he suggested that the
equipment used for the purpose of measuring blood alcohol
concentration (BAC) will only be getting better and easier to
calibrate as technology advances. He posited that where the
state has road systems, the state should keep its analysis
equipment working, for everybody's good. One of the unintended
consequences of allowing search warrants in DWI situations, he
added, is that [law enforcement agencies] might not be so
vigilant about maintaining their equipment. He advocated again
for maintaining the current law [via adoption of Amendment 31].
CHAIR ROKEBERG posed the scenario wherein somebody has been
arrested for DWI and expresses willingness to take an
intoximeter test but refuses to give a blood sample. He asked
whether the refusal statutes would apply in this example.
MR. GUANELI responded that the refusal statute only applies in
cases where somebody has refused to take a breath test; it does
not apply to refusals relating to other types of tests. He
confirmed that when there is no equipment available to perform a
breath test, prosecution can only continue under the impairment
statute. He warned that the argument could be made that the
state's case is weak because it did not care enough to maintain
the necessary equipment when, in fact, it might simply be a
matter of the machinery breaking down. He suggested that it is
incorrect to say that the legislature somehow considered "this"
as part of the statutes involving refusal; "we" as prosecutors
have always believed that if the machine were broken down, "we"
could always go to court and get a search warrant, and it wasn't
until the Sosa case that the court said it would interpret the
statute contrary to past practice. He said he did not believe
that the legislature ever intended that search warrants could
not be used in these circumstances; [the legislature] set up a
scheme to encourage use of the breath machine because it is the
easiest way to go about it, but sometime the hard way - via a
search warrant - is the only way. He offered that keeping
[Section 37] in CSHB 4(TRA) comports with [the DOL's]
interpretation of the law [notwithstanding the Sosa case] that
search warrants could be used in these circumstances.
Number 1696
REPRESENTATIVE BERKOWITZ suggested that they put themselves in
the position of somebody who is not guilty because that is whom
the laws are designed to protect. He noted that "we" always
jump to the assumption that "we're" letting guilty people go,
but, he reminded the committee, "we're" also protecting the
rights of innocent people. He added that "we" go too far when
allowing such an intrusive method when it is not absolutely
necessary in order to make a case (it may not mean being
strapped to a gurney, he noted, but most people he knew did not
like having their blood drawn).
REPRESENTATIVE MEYER said he disagreed. From his experience,
which he gained while riding with the Anchorage Police
Department (APD), most DWIs occur between the hours of 2 a.m.
and 5 a.m., and the calls are stacked up. He reminded the
committee of prior testimony indicating that the chances of
getting caught for DWI/DUI (driving under the influence) were 1
out of 100, and he added that he would hate to see somebody "get
off" because of a technicality, or because the intoximeter was
not working. He noted that APD is not going to go through the
time and effort to call up a judge and request a search warrant
unless there is good reason to believe that a suspect has been
drinking and is impaired. He remarked that he has the attitude
that DWI offenses should be considered felonies, and he
advocated that "they" should give law enforcement as many tools
as possible to keep intoxicated people off the roads.
CHAIR ROKEBERG mentioned that "they" also had the probable cause
standard. He noted that the objection to Amendment 31 was
maintained.
Number 1900
A roll call vote was taken. Representative Berkowitz voted for
Amendment 31. Representatives Meyer, James, Coghill, and
Rokeberg voted against it. Therefore, Amendment 31 failed by a
vote of 1-4.
CHAIR ROKEBERG noted that Amendment 32 has been incorporated
into CSHB 4(TRA) as part of Amendment 11, [which was amended and
adopted on 3/26/01]. He also noted that Amendment 22 was
addressed via Amendment 20 [which was adopted 3/28/01], with the
exception of [deleting lines 18-19, on page 4], which contains
language requiring a person use first, middle, and last name or
a business name when registering a vehicle. He suggested that
by not deleting this language, the Division of Motor Vehicles
(DMV) would be able to perform cross-matches more easily.
REPRESENTATIVE BERKOWITZ agreed to withdraw Amendments 32, 22,
and 23.
Number 2010
CHAIR ROKEBERG referred to Amendment 24, which read [original
punctuation provided]:
Page 9
Delete, lines 7 - 24
Renumber accordingly
CHAIR ROKEBERG noted it related to limited licenses and ignition
locks. He inquired why Representative Berkowitz, in bringing
forth Amendment 24, did not wish to include the reference to
ignition locks in CSHB 4(TRA).
REPRESENTATIVE BERKOWITZ, noting that reference to ignition
locks was fine, went on to explain that there was provision, in
the language that would be deleted via Amendment 24, for a
probationary period resulting from a section that has since been
deleted. Because of a time constraint, he agreed to set
Amendment 24 aside and discuss it later.
Number 2096
CHAIR ROKEBERG made a motion, on behalf of Representative Ogan,
who was absent, to adopt Amendment 34, which read [original
punctuation provided]:
Page: 27
Lines: 24 and 25
Change as follows: purpose of determining [the amount
of alcohol in that person's blood or to determine] the
presence of a controlled substance in the person's
[blood] or urine.
Number 2114
JANET SEITZ, Staff to Representative Norman Rokeberg, Alaska
State Legislature, explained that the language affected by
Amendment 34 is part of a new subsection that involves the Sosa
case. She said that according to her reading of Amendment 34,
the references to blood and to alcohol will be deleted from this
subsection.
Number 2166
MIKE FORD, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency, added
that his interpretation of Representative Ogan's intent is to
change the language in Section 45 of CSHB 4(TRA) so that it only
applies to [testing for] controlled substances.
Number 2201
DAVID STANCLIFF, Staff to Representative Scott Ogan, Alaska
State Legislature, explained that via Amendment 34,
Representative Ogan was attempting to restrict [Section 45] to
controlled substances only, because he did not believe that
people should [be subjected to] any type of invasive procedure
without their permission.
MR. FORD, in response to the question of whether Amendment 34
would accomplish this, said:
Section 45 applies in a particular situation. The
person's under arrest for DWI, there's some exigent
circumstance precluding the administration of the
chemical test - ... the breathalyzer is broken - the
"chemical test may be administered without the consent
of the person arrested for the purpose of determining
the amount alcohol in [that] person's blood", in other
words, a blood test. I believe this is another
example of where, for some reason, they can't do a
breath test.
MR. FORD also noted that there is a statute that allows specific
exceptions for taking blood - AS 28.35.035 - and Section 45 adds
another exception to that [statute], but would not be in
conflict with the language in [Section 37 of CSHB 4(TRA), which
was discussed with regard to Amendment 31]. He added that
Amendment 34 would simply narrow the application of Section 45.
MR. GUANELI, with regard to the differences between Sections 37
and 45, said that because of the Sosa decision, which said
warrants could not be issued for blood when the intoximeter was
not available, [the DOL] has sought remedy via [Section 37 of
CSHB 4(TRA)], which would allow for a search warrant, and
Section 45 [of CSHB 4(TRA)], which would allow, under exigent
circumstances, for a blood sample to be taken without either the
suspect's consent or a search warrant. He said he believes that
the search warrant provision is the important provision and is
preferred because it will work in most circumstances, but he
acknowledged that the exigent circumstances provision might also
be applied in rare instances. He noted that the latter is more
risky, legally, because [law enforcement] would need to prove
that the exigent circumstances exist. He added that [the DOL]
strongly supports Section 37 but does not feel as strongly about
Section 45.
CHAIR ROKEBERG surmised, then, that while [the DOL] would like
to see Section 45 kept in CSHB 4(TRA), it would not strongly
object to deletion of that entire section.
MR. GUANELI said that was an accurate characterization.
REPRESENTATIVE COGHILL said he was wondering whether the
compelling argument for a urine test for controlled substances
is worth the effort [of maintaining Section 45].
MR. GUANELI responded that when dealing with [the presence] of
drugs, it is always difficult to test for them, and he was not
certain there was enough compelling interest [to maintain
Section 45] simply for the purposes of a urine test. Drugs tend
to show up in body for long periods of time and for this reason,
among others, tests for drugs do not make for the best evidence,
he noted.
REPRESENTATIVE COGHILL said he would support deleting [Section
45] entirely.
CHAIR ROKEBERG asked if Mr. Guaneli would support adoption of
Amendment 34.
MR. GUANELI said he thought that adoption of Amendment 34 was
preferable to deleting [Section 45] entirely, but he did not
have a strong objection to its deletion, if that were the will
of the committee.
Number 2477
REPRESENTATIVE COGHILL made a motion to amend Amendment 34 such
that Section 45 of CSHB 4(TRA) would be deleted entirely.
CHAIR ROKEBERG asked whether there were any objections to the
amendment to Amendment 34. There being no objections, the
amendment to Amendment 34 was adopted.
TAPE 01-46, SIDE B
Number 2480
CHAIR ROKEBERG asked if there were any objections to Amendment
34, as amended. There being no objections, Amendment 34, as
amended, was adopted.
[These last two motions are not found in their entirety on the
tape but were recorded in the log notes.]
Number 2470
CHAIR ROKEBERG made a motion, on behalf of Representative Ogan,
to adopt Amendment 35, which read [original punctuation
provided]:
Page: 11
Line: 8
Amend as follows: $1000. [; and]
Lines: 9, 10, and 11
Amend as follows: Delete
CHAIR ROKEBERG noted that it would remove the requirement that
enablers attend "alcohol school." He also noted that his staff
did not like Amendment 35, but he himself was willing to concede
on this section.
MR. STANCLIFF said that the foregoing was an accurate
description of the effect of Amendment 35, and he relayed that
Representative Ogan felt that there are some folks that can go
through the system a dozen times, which gets expensive and is
bureaucratically cumbersome; therefore, in a conservative vein,
Amendment 35 is a more responsible way to go.
REPRESENTATIVE COGHILL spoke in favor of Amendment 35 because
enablers may not have an alcohol problem, and thus do not need
to be compelled to go to treatment.
Number 2426
REPRESENTATIVE MEYER objected to the motion to adopt Amendment
35, and referred to previously heard statistics that say that a
person drives drunk approximately 80 times before getting
caught; therefore, when that person is finally caught, going to
alcohol treatment will be beneficial.
CHAIR ROKEBERG clarified that the provision affected by
Amendment 35 pertained to alcohol treatment for the enabler -
the person who allowed the offender to drive - after a second
offense. He added that he had no objection to Amendment 35.
MS. SEITZ argued that if a person gets convicted a second time
for enabling someone to drive drunk, there was no harm in
requiring alcohol education for the enabler so that he/she can
learn more about the effects of alcohol.
CHAIR ROKEBERG ventured that the current enabler statute is
probably rarely used, and that the spouse who might get swept up
by this requirement already knows about the effects. He also
clarified that Representative Berkowitz has a forthcoming
[Amendment 25] that would entirely delete the section [in CSHB
4(TRA)] pertaining to enablers.
Number 2267
CHAIR ROKEBERG noted that there were no longer any objections to
Amendment 35. Therefore, Amendment 35 was adopted.
CHAIR ROKEBERG called an at-ease from 11:47 a.m. to 11:48 a.m.
Number 2260
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 25,
which read [original punctuation provided]:
Page 11
Delete, lines 2 - 11
Renumber accordingly
Number 2259
CHAIR ROKEBERG objected.
REPRESENTATIVE BERKOWITZ said that he appreciated the intent of
this section to prevent access to vehicles by people with
drinking problems, but Alaska has a very high incidence of
domestic violence (DV), and, via the enabler provision, victims
of domestic violence, which all too often is an alcohol-related
crime, are being put in an untenable situation; victims would be
required to tell their abusers, "No, I'm not giving you the car
keys."
CHAIR ROKEBERG said he thought that the enabler provision had
already been amended [via Amendment 9, adopted on 3/26/01] to
allow for "a DV defense."
REPRESENTATIVE BERKOWITZ explained that that previous amendment
allows for the "defense of justification," which is a defense
that's available for any criminal charge, and he argued that was
not enough.
Number 2198
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence
and Sexual Assault (ANDVSA), explained that when there has been
a DWI arrest followed by an investigation regarding whether
someone allowed the offender to have the keys to the car, if
that person is a victim of domestic violence, the ANDVSA does
not want the [DV] victim to be charged [for an enabler offense].
She said that to her understanding, the effect of Amendment 9,
which allows for an affirmative defense, is something that would
take place in the courtroom, and the ANDVSA would like something
that takes care of the situation at the investigation level.
[The ANDVSA] is concerned that victims of DV not be charged with
violating [the enabler provision].
CHAIR ROKEBERG offered that that was the intention of Amendment
9, and that it basically "does that."
REPRESENTATIVE BERKOWITZ argued that [Amendment 9] "doesn't do
that." Essentially, all it does is tell a defendant that he/she
can use an existing portion of the law. Even without [Amendment
9], defendants would still have access to "the defense of
justification."
CHAIR ROKEBERG said he would not have any objections to the
amendment if it had "brighter" language because the enabler
statute is already on the books, though it is bare of "that"
language. He added that he would prefer that another solution
be found rather than simply deleting [the entire enabler
provision from CSHB 4(TRA)].
REPRESENTATIVE BERKOWITZ said he would like to work on it. He
then said that he had other criticisms of the way in which the
enabler provision in CSHB 4(TRA) is set up. For example, if the
enabler's driver's license, privilege to drive, or privilege to
obtain a license is revoked for 30 days, there is no nexus to
the crime; the state would be taking away the driver's license
of someone who has not engaged in bad driving [practices].
CHAIR ROKEBERG argued that that person has enabled a person with
a history of DWI to "get back on the streets."
REPRESENTATIVE BERKOWITZ countered that that is why [the offense
of enabling] is a class A misdemeanor, but, he continued,
usually the penalty has to bear some causal relationship to that
crime, which is not that the individual drove badly; the crime
is that the individual let someone else do something he/she is
not allowed to do, and he added that he simply did not see a
link.
REPRESENTATIVE BERKOWITZ also expressed the criticism that a
minimum fine of $1,000 was being imposed for a class A
misdemeanor [enabler] offense, and, as he recalled, the minimum
fine for a first-time DWI offense at a BAC level of .08 was only
$500. He suggested that the $1,000 fine for an enabler was
rather draconian. He added that most of the people who come
into criminal court for these types of crimes are
disproportionately poor, and [the state] would be "squeezing
blood from a turnip." He offered that this does not get at the
problem; if "we're" going to criminalize enablers, let's just
criminalize [the offense] and let the courts put the penalty
where the courts see necessary.
Number 1950
REPRESENTATIVE COGHILL made a motion to amend Amendment 25 such
that it would leave lines [2-5] up through - and place a period
after - the word "misdemeanor" [in Section 18 of CSHB 4(TRA)];
this would still allow the offense to be class A misdemeanor
without mandating what the courts shall do.
REPRESENTATIVE BERKOWITZ said, although he would be comfortable
with that amendment to Amendment 25, it still does not address
the domestic violence concern. In order to accomplish that, "we
have to get in at investigation phase" because people can get
caught up in the system who oughtn't be there.
CHAIR ROKEBERG said he did not object either to that point or to
the proposed amendment to Amendment 25.
REPRESENTATIVE BERKOWITZ, on the point of whether the amendment
to Amendment 25 would allow the courts to consider the issue of
DV as a defense, said that [DV] would not necessarily be a
defense; the "battered spouse syndrome," which is usually
associated with homicide trials, is an incredibly difficult and
expensive defense to present, he explained, and he could not
imagine the public defender having the wherewithal to present it
in a class A misdemeanor charge.
MS. SEITZ, in response to Chair Rokeberg, explained that
subsection (b) of the current enabler statute does not have a
fine or penalty associated with it, and does not specifically
say it is any particular class of crime.
MR. FORD clarified that anything that is not specified in Title
20 has the generic penalty of being a class A misdemeanor.
Number 1800
REPRESENTATIVE COGHILL, on that basis, withdrew his amendment to
Amendment 25.
Number 1786
REPRESENTATIVE BERKOWITZ, with the intent of working on the DV
problem, withdrew Amendment 25.
[There was committee discussion about the upcoming schedule, and
a brief at-ease from 12:02 p.m. to 12:04 p.m. Following the at-
ease Chair Rokeberg announced that HB 4 would be held over.]
ADJOURNMENT
Number 1754
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 12:05 p.m.
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