Legislature(1995 - 1996)
02/20/1995 01:08 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 20, 1995
1:08 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
Representative Con Bunde
Representative Bettye Davis
COMMITTEE CALENDAR
HB 72: "An Act enacting the Uniform Fraudulent Transfer Act."
PASSED OUT OF COMMITTEE
* HB 159: "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."
HEARD AND HELD
HJUD - 02/20/95
*HB 158: "An Act relating to civil actions; amending Alaska Rules
of Civil Procedure 49, 68, and 95; amending Alaska Rule
of Evidence 702; and providing for an effective date."
SCHEDULED BUT NOT HEARD
(* First public hearing)
WITNESS REGISTER
DEBRA PERLMAN, Legislative Counsel
National Conference of Commissioners on Uniform State Law
Chicago Headquarters
Chicago, Illinois
Telephone: (312) 915-0195
POSITION STATEMENT: Testified in favor of HB 72
DEBORAH RANDALL, Attorney
Law Firm of Davis and Goerig
405 W. 36th Avenue
Anchorage, AK 99503
Telephone: (907) 561-4420
POSITION STATEMENT: Testified in favor of HB 72
MARY ELLEN BEARDSLEY, Assistant Attorney General
Commercial Section
Department of Law
1031 W. 4th Avenue, Suite 200
Anchorage, AK 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Testified in favor of HB 72
TOM EVANS, Credit Manager and President
International Credit Association of Anchorage
2700 E. Tudor
Anchorage, AK 99501
Telephone: (907) 762-8875
POSITION STATEMENT: Testified in favor of HB 72
JERRY WEAVER, Chamber Vice President and
Manager, Commercial Lending, National Bank of Alaska and
Secretary/Treasurer, Alaska Bankers Association
301 West Northern Lights Boulevard
Anchorage, AK 99503
Telephone: (907) 276-1132
POSITION STATEMENT: Testified in favor of HB 72
RON OTTE, Commissioner
Department of Public Safety
P.O. BOX 111200
Juneau, AK 99811-1200
Telephone: (907) 465-4322
POSITION STATEMENT: Testified in favor of CSHB 159
LOREN JONES, Director
Division of Alcoholism and Drug Abuse
Department of Health and Social Services
P.O. Box 110607
Juneau, AK 99811-0607
Telephone: (907) 465-2071
POSITION STATEMENT: Provided information on CSHB 159
DAVE HERNDON, Executive Director
Anchorage Chapter of Mothers Against Drunk Driving (MADD)
130 West International Airport Road
Anchorage, AK 99518
Telephone: (907) 522-6233
POSITION STATEMENT: Testified in support of CSHB 159
MICHAEL J. CORKILL, President
Alaska Peace Officers Association
1979 Peger Road
Fairbanks, AK 99709
Telephone: (907) 451-5316
POSITION STATEMENT: Testified in favor of CSHB 159
JOHN NEWELL, Chief of Police
304 Lake Street, Room 102
Sitka, AK 99835
Telephone: (907) 747-3245
POSITION STATEMENT: Testified in favor of CSHB 159
MARGOT KNUTH, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-4037
POSITION STATEMENT: Provided information on CSHB 159
JERRY SHRINER, Special Assistant
Office of the Commissioner
Department of Corrections
P.O. Box 112000
Juneau, AK 99811-2000
Telephone: (907) 465-3376
POSITION STATEMENT: Provided information on CSHB 159
PREVIOUS ACTION
BILL: HB 72
SHORT TITLE: UNIFORM FRAUDULENT TRANSFER ACT
SPONSOR(S): REPRESENTATIVE(S) PORTER,Bunde
JRN-DATE JRN-PG ACTION
01/06/95 39 (H) PREFILE RELEASE
01/16/95 39 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 39 (H) LABOR & COMMERCE, JUDICIARY, FINANCE
01/19/95 91 (H) COSPONSOR(S): BUNDE
02/01/95 (H) L&C AT 03:00 PM CAPITOL 17
02/01/95 (H) MINUTE(L&C)
02/03/95 229 (H) L&C RPT 4DP 3NR
02/03/95 229 (H) DP: ROKEBERG, KUBINA, PORTER, KOTT
02/03/95 229 (H) NR: ELTON, MASEK, SANDERS
02/03/95 229 (H) 2 ZERO FISCAL NOTES(LAW, DCED)2/3/95
02/17/95 (H) JUD AT 01:00 PM CAPITOL 120
02/20/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 159
SHORT TITLE: DWI LAWS/ MINOR IN POSSESSION LAWS
SPONSOR(S): REPRESENTATIVE(S) PORTER,Bunde
JRN-DATE JRN-PG ACTION
02/06/95 253 (H) READ THE FIRST TIME - REFERRAL(S)
02/06/95 253 (H) JUDICIARY, FINANCE
02/17/95 (H) JUD AT 01:00 PM CAPITOL 120
02/20/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 158
SHORT TITLE: CIVIL LIABILITY
SPONSOR(S): REPRESENTATIVE(S) PORTER,Toohey
JRN-DATE JRN-PG ACTION
02/06/95 253 (H) READ THE FIRST TIME - REFERRAL(S)
02/06/95 253 (H) JUDICIARY, FINANCE
02/17/95 (H) JUD AT 01:00 PM CAPITOL 120
02/20/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-13, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:08
p.m. on Monday, February 20, 1995. A quorum was present. The
meeting is on teleconference with Anchorage, Fairbanks, Ketchikan
and Sitka. CHAIRMAN BRIAN PORTER stated the following bills would
be heard: HB 72, CSHB 159 and HB 158, all of which he was
sponsoring.
HJUD - 02/20/95
HB 72 - UNIFORM FRAUDULENT TRANSFER ACT
CHAIRMAN BRIAN PORTER said this legislation passed the House last
year, and also passed in 32 other states. This legislation would
update our statutes. He then read the following sponsor statement:
"The Uniform Fraudulent Transfer Act (UFTA) provides creditors with
a remedy when debtors transfer or hide assets that would otherwise
be available to satisfy legitimate debts. HB 72 is modeled after
the uniform law adopted by the National Conference of Commissioners
on Uniform State Laws. The Attorney General of the State of Alaska
is in support of this needed legislation.
"Alaska law in this area was adopted in 1949 from the state of
Oregon and had received little legislative attention. Yet, many
changes in both state and federal law, particularly in the area of
bankruptcy, and relationships between creditors and debtors have
become more complex.
"At this time, Alaska law provides that a conveyance of real or
personal property will be void if it was made `with the intent to
hinder, delay or defraud creditors.' AS 34.40.010. The existence
of this fraudulent intent is a question of fact and the burden of
proof is upon the creditor (Summers v. Hagen_P.2d_, No.3961, May
28, 1993). This burden of proof can be extremely hard to prove.
UFTA would eliminate the present Alaskan necessity of finding
actual intent by a property transferor to hinder, delay or defraud
a creditor in many situations where the transferor is obviously
transferring assets solely to keep them out of the reach of
transferor's creditors. UFTA sets out numerous non-exclusive
factors to be considered by the court when determining if the
debtor had `actual intent.'
"Thirty-two (32) states have adopted UFTA into their laws.
Uniformity has become not only a question of law between states,
but also between state and federal law. Without uniformity, credit
becomes less available, and the credit mechanism is less reliable.
The Uniform Fraudulent Transfer Act takes into account the current
development in both law and practice in creditor-debtor
relationships."
Number 080
DEBRA PERLMAN, Legislative Counsel, National Conference of
Commissioners on Uniform State Law, Chicago Headquarters,
explained that this conference is a 103-year-old organization. It
is made up of practicing lawyers, judges, and law professors
appointed by the Governors of every state. At Uniform Law
Conferences, they come together to draft laws they feel should be
adopted on a uniform basis. During the meetings, they have Uniform
Law Commissioners sitting around the table, as well as advisors and
observers from all over the spectrum; so that the end result is as
balanced as possible, in order to achieve uniform adoption
throughout the country. The Uniform Fraudulent Transfer Act is a
modern version of the Uniform Fraudulent Conveyance Act (UFCA),
originally promulgated by the National Conference in 1918. Alaska
is not one of the states that had adopted this Act. Alaska
probably has some type of Statute of Elizabeth law which was
recognized in the 1500s. So Alaska clearly needs to be brought up
to date in the area of fraudulent transfers. The intent of the
UFTA is the same as the UFCA. It classifies the category of
transfers as money owed to creditors. The UFTA would provide
creditors with a remedy for the transfers. The Act declares a
transfer made while obligations incurred was actual intent to
hinder the payment of debt. Failure to notify creditors would be
fraudulent.
MS. PERLMAN explained, in addition, the transfer made before
obligation occurred without adequate consideration, could be
fraudulent; whether or not there was actual intent to defraud. You
do not necessarily have to have actual intent to defraud or hinder,
in order for the transfer to be considered fraudulent. If there is
no actual intent, then in order to be considered fraudulent,
certain conditions listed in the Act must be met. One example
would be if the debtor made a transfer, and as a result of the
transfer became insolvent, even before the transfer occurred, then
that would be considered a fraudulent transfer. It is just a
matter of it being very unfair to creditors for a transfer like
this to take place, when the debtor has an obligation to handle the
creditor's concerns as well. So there is actual intent, and there
is also constructive intent. She said they hoped all 50 states
would adopt this legislation.
Number 190
REPRESENTATIVE AL VEZEY discussed with Ms. Perlman his concerns
about having this type of language in the statutes. He said the
language does not address fraudulent transfer that is not
intentional. In liquidating hard assets, he would not want the
worth of his property determined by someone else.
MS. PERLMAN explained that fair market value would be the amount
used in selling. She also said this would only become an issue if
the creditors did not get paid.
REPRESENTATIVE VEZEY argued that if you want to liquidate today,
you have to sell for the best price right now, not what you may be
able to get six months from now, or six months ago. In Juneau,
those can be drastic differences. He had been to court on occasion
to establish fair market value, and has no faith in someone else
being able to tell him what his assets are worth.
Number 310
MS. PERLMAN said the determination is made using the reasonable
equivalent of fair market value, which is only one consideration.
If the market is such that something cannot actually be sold for
fair market value, then it probably would not be considered a
fraudulent transfer if someone sold it for a lot less than they
could have originally gotten for it. If someone sold a $20,000 car
for $15 to their aunt, in order to avoid creditors, then that would
most likely be considered a fraudulent transfer; because even for
the sheet metal, you can get more than $15 for a car. It really
depends on the situation.
REPRESENTATIVE VEZEY expressed concerns over the fact that there is
no definition of what reasonable equivalent value is. He would
like to at least see a disclaimer, saying that if you have an arms
length transaction, that would be considered prima facie evidence
that there was no intent to defraud.
MS. PERLMAN explained they do not want to define this reasonably
equivalent value in statute, we want that to be a case-by-case
determination. That can be best done by us not getting involved
with specifics.
Number 410
REPRESENTATIVE VEZEY did not understand why there was 20 lines of
statute mitigating circumstances that would describe intent to
defraud, but no expansive language on what reasonably equivalent
value is. He did not trust the courts to understand his idea of
commercial practice.
MS. PERLMAN argued the courts do, and have handled reasonably
equivalent determinations for 75 or 80 years.
REPRESENTATIVE VEZEY asked which factors are used in proving or
disproving intent.
MS. PERLMAN agreed the language was possibly phrased a little
awkwardly. They are saying if it is not reasonably equivalent to
the value, then actual intent might be considered.
Number 445
DEBRA RANDALL, Attorney, Law Firm of Davis and Goerig, testified
via teleconference from Anchorage, and said her main areas were
estate planning and probate. Their concerns were over the current
actual intent language which goes a step further, including
constructive intent, which says you can establish intent. They
were worried this would apply not only to present creditors, but
also to future creditors. Something they do frequently is
establish trust fund accounts for children to go to college. She
was concerned that a transfer such as this could be tapped into by
a creditor in the future, 10 or 20 years down the road. Maybe
future creditors would not be included, but they were worried about
the possibility, and wanted the language to reflect that it applies
only to present creditors. She said they would delete Section 2
completely. Including future creditors would increase litigation.
Their law firm was in favor of this legislation, in general, but
they were definitely concerned about future creditors.
Number 520
MARY ELLEN BEARDSLEY, Assistant Attorney General, Department of
Law, testified via teleconference from Anchorage, representing the
Alaska Housing Authority. With regards to future creditors, she
gave an example of why she did not think the law should be changed
with regard to future creditors. In 1992, Alaska Housing merged
with the Public Housing Authority. They have a person living in
one of their apartments in Fairbanks who was receiving subsidy
through the Housing and Urban Development (HUD) program. It turned
out that person had property and other assets he had failed to
disclose for 20 years. After they found out about it, they
discontinued his subsidy, and are presently suing him for the
subsidies he did receive, because his assets exceeded the monetary
limit available to receive those subsidies. The lawsuit was filed.
They are a future creditor, and have no judgment at this time.
During the lawsuit, they obtained a prejudgment writ of attachment
which attached a piece of real property in Fairbanks. The
defendant then proceeded, after the attachment, after the lawsuit
was filed, to deed that property to his brother who had been living
out of the state for probably over 40 years. The defendant is
claiming the property always belonged to his brother and that he
was essentially taking care of the property over the last 40 years.
The property was purchased in 1959 by the defendant. All of the
property records have always been in his name, and he has always
paid the taxes.
MS. BEARDSLEY noted as you can see, we are definitely a future
creditor, we do not have a judgment, and if we fell under this Act,
we could have shown actual intent by using the considerations that
are listed on page 3 of the Act, under subsection (b), under
34.41.030, the transfer occurred after the lawsuit was filed. If
this Act had been in place, we would have been able to attach that
property and get it back, doing whatever was necessary to satisfy
the judgment. But now, we do not have the luxury to try to bring
that property back in. We believe the transfer was fraudulent, and
under the current law, we have to prove the intent.
MS. BEARDSLEY continued, for the reason of this example, it is
critical to include future creditors in this legislation. This
statute sets out a statute of limitations of two to four years, or
perhaps even one year, after the transfer is actually found out
about. You need to take the whole bill, and not look at it just
piecemeal, because right now, the proof of intent can only be
determined through circumstantial evidence. She agreed with Ms.
Perlman that the reasonable equivalent value should be decided by
the court or by a jury.
Number 665
TOM EVANS, Credit Manager and President of International Credit
Association of Anchorage, testified via teleconference and
explained the organization is made up of local credit managers who
push for educational legislative reform, and things of that nature.
They support HB 72. He said bankruptcies protect debtors' rights,
but creditors also have the right to assets that are improperly or
unlawfully being transferred in order to keep the assets out of the
creditors' hands. This legislation will go a long way in making
sure that happens.
Number 690
JERRY WEAVER, Chamber Vice President and Manager of Commercial
Lending, National Bank of Alaska, testified via teleconference from
Anchorage, and stated he is also Secretary/Treasurer for the Alaska
Bankers Association, and was speaking for that group. They
encouraged passage of HB 72. He felt proving intent to transfer
fraudulently was too costly. He felt it necessary for constructive
intent to be in there.
Number 765
REPRESENTATIVE VEZEY again expressed concerns about a court
determining reasonableness of equivalent value.
Number 785
MS. BEARDSLEY argued that the statute could not be made narrow, or
that would create an arena of unfairness. Reasonableness must be
determined by individual circumstances.
TAPE 95-13, SIDE B
Number 000
REPRESENTATIVE CYNTHIA TOOHEY made the motion to move HB 72 out of
committee with the two zero fiscal notes.
REPRESENTATIVE VEZEY objected.
Number 030
CHAIRMAN PORTER clarified the bill, using the example of estate
planning. There is a statute of limitations within the bill
itself, which would preclude the 10 - 20 year example. But there
has to be some relationship between the transfer and the unpaid
debt. If someone set up an estate for their kids, and several
years later was found in the position of having a malpractice suit
brought against them, there is no way they could go back and say
that original trust had been set up in violation of this Act. It
could not happen.
REPRESENTATIVE DAVID FINKELSTEIN added the sections making that
clear are on page 2, (a) and (b). It is not just reasonably
equivalent value, it has to be one of these two conditions, and if
one of these two conditions is not met, it does not matter whether
there is reasonably equivalent value. The first is the business
dealings that involve the business undertaken at that time. It
says, "... was engaged, or was about to engage...", so it has to be
timing. Section (b) has to do with debts that one is able to
foresee.
REPRESENTATIVE VEZEY said, for the record, that does not address
his concerns.
Number 080
REPRESENTATIVE FINKELSTEIN said he shared the concerns
Representative Vezey had, but the testimony heard seems to indicate
the determination of fair value is something that occurs right now
under law, and is not significantly changed by this. It is a
problem we may not be able to solve, but it does exist under
current law.
REPRESENTATIVE TOOHEY assumed the court could go back on your
record of reasonable transfer for many years and see that you are
unreasonably transferring things, as a pattern.
REPRESENTATIVE JOE GREEN thought in other tort actions, the court
has for years used the average reasonable person. There is a
degree of performance, of value that could be looked at as
reasonable. While it may not suffice the person who was defrauded,
it still should be a matter where the court could arrive at a value
that would be "reasonable."
CHAIRMAN PORTER requested a roll call vote be taken.
Representatives Finkelstein, Toohey, Green, and Porter voted yes.
Representative Vezey voted no. The bill passed with a four to one
vote.
HJUD - 02/20/95
HB 159 - DWI LAWS/MINOR IN POSSESSION LAWS
CHAIRMAN PORTER, bill sponsor, introduced the committee substitute
for HB 159. This bill basically asks that the third conviction for
driving while under the influence (DWI) within a three year period
of the first two, should be treated as a class C felony, expanding
the ability of the court to sentence the individual to five years.
He then read the following sponsor statement:
"It is a crime that drunken driving remains a misdemeanor in our
state no matter how many times a person is convicted. At some
point - a repeat conviction should become a felony.
"HB 159 DWI Laws/Minor In Possession provides law enforcement and
prosecutors with the tools they need to combat the significant
highway safety problems with drunk drivers. This legislation would
render drunk driving a felony on the third offense within a five
year period and require a minimum sentence of 120 days with a
$5000.00 fine upon conviction.
"HB 159 also gives the court the option of ordering a person to
take Antabuse or a similar drug as a condition of parole or
probation. These drugs are intended to prevent the consumption of
alcohol.
"The most frequent violent crime in the country is drunk driving.
A study published by the Alaska Department of Transportation and
Public Facilities said alcohol was a factor in 982 accidents
statewide in 1993. In the same year, 49 Alaskans died in 37
alcohol-related accidents.
"Repeat offenders account for a disproportionate number of fatal
accidents, in spite of licenses suspended and jail time served. In
fatal accidents in which the driver is drunk, people with a prior
conviction for drunk driving are almost five times more likely to
be involved than those with no record, according to the National
Highway Transportation Safety Administration.
"Driving is a privilege granted by the state that can be
conditioned upon consent to reasonable terms. HB 159 would give
Alaska one of the toughest drunk driving statutes in the nation and
send a clear message that Alaskans will no longer tolerate persons
who drive drunk."
CHAIRMAN PORTER described a case where a minor appearing
intoxicated, smelling of alcohol, and having alcohol in his
possession, could not be arrested because the officer did not see
the teenager consume the alcohol. They could not make an arrest,
but this bill would allow them to do so, under probable cause.
Number 260
RON OTTE, Commissioner, Department of Public Safety, said they were
in support of this bill addressing the issue of the chronic
impaired driver. This is an ongoing problem throughout the state.
The most current statistics (1993) show there were 42 people who
died as a result of impaired drivers. Conceptually, law
enforcement is very supportive of anything that is going to deal
with this chronic problem. In terms of minors in possession,
alcohol with our young people is a very serious problem in this
state. It is very difficult for law enforcement finding people who
are intoxicated or impaired at parties, and not being able to deal
with those issues as quickly and effectively as they used to be
able to.
Number 305
REPRESENTATIVE GREEN asked Commissioner Otte if increasing the
sentence of a third time offender would encourage plea bargaining.
The reason he asked is, he visited a court over the interim and
every case he witnessed had to do with driving under the influence,
all multiple offenders, and every one of them was plea bargained.
He was concerned that increasing the penalty would increase the
amount of plea bargaining. We would, in effect, be shooting
ourselves in the foot.
Number 315
COMMISSIONER OTTE said it is frustrating to law enforcement
officers on the streets also. The recognition of lack of jail
space is a frustrating dilemma.
LOREN JONES, Director, Division of Alcoholism and Drug Abuse,
Department of Health and Social Services, talked about the drugs
available for aiding someone in the prevention of consumption of
alcohol. The major drug used is Antabuse. There are two sections
in this bill that would allow the courts, as a condition of
probation or parole, to order a person to take drugs or a
combination of drugs, to prevent the consumption of alcoholic
beverages.
MR. JONES stated Antabuse is a prescription drug used in
conjunction with alcohol treatment. It blocks the normal breakdown
of alcohol, causing the adverse reaction in a person who consumes
alcohol. The reactions are flushing, throbbing in the head and
neck, headache, nausea, vomiting, difficulty in breathing, chest
pains, and low blood pressure. Reactions can last anywhere from 30
to 60 minutes to several hours. Because of the severity of the
potential reaction, a doctor must prescribe this drug, and the
patient must be aware of the reaction it can cause. Persons with
allergies to rubber and some pesticides, and persons suffering
glaucoma, heart disease or psychosis should not take Antabuse. It
should be used with precaution for persons with brain damage,
diabetes, epilepsy, liver, or kidney disease. All of these are
common among some alcoholics, but may not be as common among drunk
drivers, which tend not to have a long history of consumption. The
normal course of treatment is to take 50 milligrams of the drug for
two weeks, and then a maintenance dose of 250 milligrams each day.
Drinking can take place without reaction three to five days after
the person stops taking Antabuse. This leaves a lot of time to
monitor persons to make sure they are taking the drug, and gives
the person time to consider the action they took. Antabuse is not
as widely used in drunk driving programs or in treatment programs
with this particular population. We made a quick survey of 12
other states' alcohol safety action programs, drunk driving
programs and diversion programs, to see if Antabuse or other drugs
were used, either under court order or voluntarily. We found this
is not a widely held practice in any of the states. The research
literature on the effectiveness of Antabuse is somewhat mixed. The
drug works best with motivated clients who perceive they have a
problem and want to do something about it. It works only when used
with some other kind of comprehensive treatment approach. It also
seems to work best with married persons, because there is someone
there to provide motivation. There are other drugs, but they are
experimental and not available in the United States. One recent
drug available is called Maltrixon which is not designed to give
the person adverse reactions, but deters the craving. Research is
still new on this, and testing incomplete. He said they were in
support of anything that would help motivate people, especially
juveniles to get into treatment.
REPRESENTATIVE TOOHEY asked if Mr. Jones had any problem with
the biweekly Alcoholics Anonymous (AA) meetings.
MR. JONES replied not at all.
REPRESENTATIVE FINKELSTEIN asked what the cost was for a
prescription for Antabuse.
MR. JONES was not sure but thought it was relatively inexpensive,
maybe about $1 per day.
Number 465
REPRESENTATIVE FINKELSTEIN expressed concerns about what would
happen when the person eventually went off of the drug. This drug
would only prolong the alcoholic's day of reckoning with the
drinking problem. It only insures the person is on the drug while
in the custody of the Department of Corrections.
CHAIRMAN PORTER said it is intended to allow a person to get out of
jail, saving that expense, with some reasonable guarantee there
will be no drinking during that period of time while they are under
the jurisdiction of the Department of Corrections. After that, all
other considerations come into play about how to motivate them to
stay off of alcohol, or, if nothing else, to not drive while they
are drinking. This bill is not intended to fix that problem.
REPRESENTATIVE FINKELSTEIN asked if anyone knows the rate at which
a person returns to alcohol after being on this drug, and whether
that rate is more or less than someone who has gone through alcohol
treatment without this drug.
Number 520
MR. JONES said there is some elevation of success statistically,
but not a lot different than the person going through treatment
without the drug. The drug does not appear to add that much more
motivation to stop drinking, to the treatment. It will give the
general public a sense that those on probation are remaining sober.
Hopefully this is not a false sense.
CHAIRMAN PORTER said the clinical research was not dealing only
with the population on probation/parole; it deals with the entire
group. He felt the motivating factor was to say, "Take this, or
you are going back to jail."
REPRESENTATIVE VEZEY asked if Mr. Jones was dubious of the value of
having court ordered anti-alcohol drug treatment.
MR. JONES said from a clinical standpoint, the drug changes the
client's sense of motivation, and how the client is to be
approached. His dubiousness is just around the legal issues of the
court being able to order someone to take a prescription drug.
REPRESENTATIVE TOOHEY felt they should not name a particular drug,
but should leave it open to allow for new drug treatments that may
be forthcoming. Antabuse does have some success, but there is also
a definite failure rate to it.
Number 580
DAVE HERNDON, Executive Director of the Anchorage Chapter of
Mothers Against Drunk Driving (MADD), testified from Anchorage and
said they were in full support of this bill. There are a large
number of DWI offenders who are simply not getting the message that
this is not acceptable behavior. They would support anything that
would get the attention of these offenders. He also strongly urged
that the language cover all forms of vehicles - land, air, and
water.
Number 627
CHAIRMAN PORTER noted the bill does cover water and aircraft as
well as ground vehicles.
MIKE CORKILL, President of the Alaska Peace Officers Association,
testified from Fairbanks, and felt this to be a positive piece of
legislation. The recidivism rate is a public problem for peace
officers as well as citizens. There have been over 4700 DWIs this
past year, and out of those, 250 were third offenses. He would
support heavy fines, vehicle forfeitures, and a felony on the third
offense.
JOHN NEWELL, Chief of Police, Sitka, testified via teleconference
in support of the bill. He is also the President of the Chiefs of
Alaska Association. He is in total support of the effort this bill
makes. We should take any steps we can to further this cause. The
first change, under subsection (b)1, where it refers to AS
04.16.050, includes the cities that do similarly effective jobs.
He agreed with making it a C felony after the third offense in five
years. He suggested the change in consistency that would make the
fifth offense within five years a $5,000 penalty, and the sixth
offense would be a C felony with a 240-day sentence and a $5,000
fine. But under the ten year offense, it would move to 360 days
and a $4,000 fine. Under the sixth offense within ten years, the
jail time provision is greater under the ten years than under the
five. He suggested for the committee's consideration that after
the fifth charge of DWI, that person is a serious threat, so the C
felony should be attached if under the ten year period.
CHAIRMAN PORTER said that had escaped him. He intentionally tried
to create a bill that would not give a guy a better break with a
felony than with a misdemeanor. On the sixth offense, we let that
one slip through.
MR. NEWELL also suggested the bill be amended to allow for the
permanent fund dividend (PFD) to be attached for paying this fine.
He thought the current law allowed for the PFD to pay for
incarceration costs but not for fines, and may also be limited to
a one year claim.
Number 736
REPRESENTATIVE FINKELSTEIN asked what Section A amends.
MARGOT KNUTH, Assistant Attorney General, Criminal Division,
Department of Law, answered Representative Finkelstein's question.
She said there are two statutes: One is the DWI offense, and the
other is the refusal offense. Section 8, amends the refusal
statute so somebody who refuses to take a breath test, trying to
skirt around the DWI offense, will have the same penalty. One
refusing to take the breath test is presumed to be a DWI violator.
MS. KNUTH then addressed some of the provisions in the bill.
Misdemeanors normally must be committed in the presence of the
officer in order for there to be an arrest made. A judge has ruled
that the misdemeanor offense committed was the act of consuming the
alcohol, and that occurred in the time before the officer came upon
an obviously inebriated juvenile. There are two other
circumstances now, where we allow warrantless arrests. One is for
DWI cases, and the other is for domestic violence. In both of
those instances, there is another dynamic going on that warrants
treatment, even though it is a misdemeanor offense. In a DWI case,
you want the person off of the road; it is a matter of protection
to the public. In domestic violence you want to be able to
intercede, separating the parties right away. In both of those
cases, there is a safety issue. The same safety issue exists in
minor consuming, because minors who are intoxicated have even
poorer judgment than usual. This is an instance where, if an
officer can take a juvenile to the police department, the officer
can make sure the release is done either to a parent or guardian.
It is no help and no goal of the state to be able to issue a
citation to an underaged person, and say, "Come to court next
Wednesday for minor consuming." What you want with a minor
consuming offense, is to be able to intercede at the time,
considering it a safety issue. She noted the problem in Alaska is
we have remained a .10 state, while some of our western sister
states have dropped down to a .08 state. The problem arising from
this is that our Alaska Court of Appeals said that a conviction
from a .08 jurisdiction is not substantially similar to an Alaska
conviction which has to be .10. The court has said you cannot use
that conviction the same way you use a prior Alaska conviction. So
section 4,(c) and (a) says a prior conviction from a law ordinance
that requires a lower level of alcohol in the person's blood or
breath than that required in Alaska law, can be counted for a prior
conviction. This is the answer to a large problem. Somebody who
has a conviction for DWI in any state should be treated as though
they have a prior conviction for a DWI. For these persons to be
able to take advantage of this loophole, to keep being treated like
a first offender in this state, is a disservice to the public and
to the individual who needs the type of treatment that is
appropriate for repeat offenders. This same change would be
appropriate in commercial motor vehicle DWI cases. She thought
they should separate the bill out as doing two things. One is that
it makes third and subsequent offenders Class C felony offenders.
Secondly, it specifies a mandatory minimum sentence for those
felony offenses.
MS. KNUTH said existing law has a progressive sentencing scheme
based on two principles. One, is that more serious conduct should
result in a more serious sentence. The other is, even if it is the
same conduct repeated, it ought to be treated more seriously on the
repeated offenses.
TAPE 95-14, SIDE A
Number 000
MS. KNUTH continued, explaining that on a second Class C felony
offense, there is presumption that the sentence should be two
years; three years for the third Class C felony offense, and so
on. She said the dilemma in this is the cost to the Department of
Corrections when you charge all these people with felonies. The
odds of there being funding for another correctional facility is a
remote possibility, and some people feel spending the money on
rehabilitation would be a more efficient way of resolving the
problem.
Number 210
REPRESENTATIVE GREEN asked about the possibility of incarceration
outside.
Number 235
CHAIRMAN PORTER said in making them felons, it does provide for
them to be incarcerated outside, while those charged with
misdemeanors must stay here.
Number 280
REPRESENTATIVE VEZEY asked for clarification. He asked Ms. Knuth
if she had ever failed to obtain an indictment out of a grand jury,
since a defendant has a constitutional right to indictment by a
grand jury only if charged with a felony.
MS. KNUTH said she had.
Number 300
JERRY SHRINER, Department of Corrections, said in calculating the
fiscal note, they did not contemplate that individuals convicted
and sentenced under this bill would serve much, if any of that time
in prison. The calculations were made on the assumption that these
people would be placed in community residential centers, halfway
houses, or treatment programs. In evaluating these individuals
along with others who pose a much greater threat to the community,
they would be placed in less restrictive facilities than would
burglars, robbers, et cetera. Some of them will end up in jail,
but most of them will not. We do not anticipate needing
correctional facilities for all of these people, but would have to
expand community residential facilities. More probation officers
would be needed also. Regarding the outside transfer issue, these
people have such a small amount of time to serve that we would not
consider sending them to an outside facility. It would not be
economical to pay for the transportation.
Number 370
REPRESENTATIVE VEZEY asked about the figures on the fiscal note.
MR. SHRINER said it was based on a cost of $107 per day. If they
are sent to an outside facility, costs would be $59 per day, plus
transportation and medical costs.
REPRESENTATIVE TOOHEY made a motion to adopt version C of the work
draft. Seeing no objection, the work draft was adopted. She then
offered a motion to amend page 1, line 11, after .740, to add
"...an ordinance with substantially similar elements or..."
CHAIRMAN PORTER explained the intent is to allow convictions for
violation of municipal ordinances, dealing with minors consuming,
to be considered along with the state statute. He then described
Amendment Number 2. In Section (a), for the purpose of previous
convictions from other jurisdictions, this would be more likely to
be upheld if we use the words "provide for" on line 21 and again on
line 29, rather than "require." It does not change the intent, it
just makes it a little more specific.
REPRESENTATIVE TOOHEY made a motion to move Amendment Number 2.
Hearing no objection, it was so ordered.
Number 545
REPRESENTATIVE TOOHEY then made the motion to move the bill with
the attached fiscal notes and individual recommendations.
REPRESENTATIVE FINKELSTEIN was not clear on the ramifications for
turning some of these folks, particularly alcoholics, into felons,
though they should be kept off of the roads for a while. Still he
had concerns about the costs.
CHAIRMAN PORTER noted the current law decriminalizing public
intoxication was based on the philosophy that alcoholism is a
medical problem, and not a crime. Consequently, being drunk in
public is a medical problem, and not a crime. This is a step
further. We are not putting someone into a felony category for
being an alcoholic and drinking. We are, however, if they then get
into a car a third time in five years.
REPRESENTATIVE FINKELSTEIN's main concern was what we were doing
for their reintroduction into society. He was not doubting the
appropriateness of the punishment, but the effectiveness of the
treatment.
CHAIRMAN PORTER said he was under the hope that changing this from
a misdemeanor to a felony would get people's attention, perhaps
precluding having to do this. He asked the committee for a
conceptual agreement to incorporate the amendments into a new
committee substitute. This was agreed upon by the committee, with
the understanding that all committee members present would see the
committee substitute one last time before it was passed out of the
House Judiciary Committee. Chairman Porter then restated this
third conceptual amendment which would provide that sixth offenses
receive the same minimum sentence under a felony conviction as the
sixth and subsequent offense for a misdemeanor. Seeing no
objection, the conceptual amendment passed.
REPRESENTATIVE VEZEY asked if they could request a fiscal note from
the court system.
CHAIRMAN PORTER said they would. He said his intent was to get the
wording put into a committee substitute and put it out to the
individual members. He mentioned that since time was out, the HB
158 work session would be held over until Monday.
ADJOURNMENT
The House Judiciary Committee adjourned at 3:30 P.M.
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