03/31/2001 11:19 AM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 31, 2001
11:19 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. 40
"An Act providing for the revocation of driving privileges by a
court for a driver convicted of a violation of traffic laws in
connection with a fatal motor vehicle or commercial motor
vehicle accident; amending Rules 43 and 43.1, Alaska Rules of
Administration; and providing for an effective date."
- MOVED CSHB 40(JUD) OUT OF COMMITTEE
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
HOUSE BILL NO. 177
"An Act placing certain special interest organizations within
the definition of 'group' for purposes of Alaska's campaign
finance statutes; providing a contingent amendment to take
effect in case subjecting these organizations to all of the
statutory requirements pertaining to groups is held by a court
to be unconstitutional; requiring certain organizations to
disclose contributions made to them and expenditures made by
them; requiring disclosure of the true source of campaign
contributions; and providing for an effective date."
- MOVED CSHB 177(STA) OUT OF COMMITTEE
HOUSE BILL NO. 179
"An Act relating to underage drinking and drug offenses; and
providing for an effective date."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 40
SHORT TITLE:REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
01/10/01 0045 (H) READ THE FIRST TIME -
REFERRALS
01/10/01 0045 (H) JUD, FIN
01/10/01 0045 (H) FN1: (ADM)
01/10/01 0045 (H) FN2: ZERO(ADM)
01/10/01 0045 (H) FN3: ZERO(LAW)
01/10/01 0045 (H) GOVERNOR'S TRANSMITTAL LETTER
02/26/01 (H) JUD AT 1:00 PM CAPITOL 120
02/26/01 (H) Heard & Held
02/26/01 (H) MINUTE(JUD)
03/28/01 (H) JUD AT 1:00 PM CAPITOL 120
03/28/01 (H) Heard & Held
MINUTE(JUD)
03/31/01 (H) JUD AT 11:00 AM CAPITOL 120
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
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
MINUTE(JUD)
03/19/01 (H) JUD AT 1:00 PM CAPITOL 120
03/19/01 (H) Heard & Held
03/19/01 (H) MINUTE(JUD)
03/23/01 (H) JUD AT 1:00 PM CAPITOL 120
03/23/01 (H) Heard & Held
03/23/01 (H) MINUTE(JUD)
03/26/01 (H) JUD AT 1:00 PM CAPITOL 120
03/26/01 (H) Heard & Held
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
03/29/01 (H) Heard & Held
MINUTE(JUD)
03/30/01 (H) JUD AT 1:00 PM CAPITOL 120
03/30/01 (H) Scheduled But Not Heard
03/30/01 (H) MINUTE(JUD)
03/31/01 (H) JUD AT 11:00 AM CAPITOL 120
BILL: HB 177
SHORT TITLE:CAMPAIGN FINANCE: CONTRIB/DISCLOS/GROUPS
SPONSOR(S): RLS
Jrn-Date Jrn-Page Action
03/12/01 0543 (H) READ THE FIRST TIME -
REFERRALS
03/12/01 0543 (H) STA, JUD
03/22/01 0683 (H) STA RPT CS(STA) NT 5DP 2NR
03/22/01 0683 (H) DP: WILSON, STEVENS, JAMES,
FATE,
03/22/01 0683 (H) COGHILL; NR: CRAWFORD, HAYES
03/22/01 0683 (H) FN1: (ADM)
03/22/01 0695 (H) FIN REFERRAL ADDED AFTER JUD
03/22/01 (H) STA AT 8:00 AM CAPITOL 102
03/22/01 (H) Moved CSHB 177(STA) Out of
Committee
03/22/01 (H) MINUTE(STA)
03/30/01 (H) JUD AT 1:00 PM CAPITOL 120
03/30/01 (H) Heard & Held
MINUTE(JUD)
MINUTE(JUD)
03/31/01 (H) JUD AT 11:00 AM CAPITOL 120
BILL: HB 179
SHORT TITLE:OFFENSES RELATING TO UNDERAGE DRINKING
SPONSOR(S): JUDICIARY
Jrn-Date Jrn-Page Action
03/13/01 0560 (H) READ THE FIRST TIME -
REFERRALS
03/13/01 0560 (H) JUD, FIN
03/13/01 0560 (H) REFERRED TO JUDICIARY
03/28/01 (H) JUD AT 1:00 PM CAPITOL 120
03/28/01 (H) <Bill Postponed TO 3/30/01>
03/30/01 (H) JUD AT 1:00 PM CAPITOL 120
03/30/01 (H) Heard & Held
MINUTE(JUD)
03/31/01 (H) JUD AT 11:00 AM CAPITOL 120
WITNESS REGISTER
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: Offered amendments to HB 40 and answered
questions; testified on amendments to CSHB 4(TRA) and answered
questions; testified on amendments to HB 179 and answered
questions.
JANET SEITZ, Staff
to Representative Norman Rokeberg
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: Explained amendments to CSHB 4(TRA) and
answered questions.
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 39B and responded to questions.
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 to CSHB 4(TRA).
MARY MARSHBURN, Director
Division of Motor Vehicles
Department of Administration
3300B Fairbanks Street
Anchorage, Alaska 99503
POSITION STATEMENT: Answered questions relating to HB 179;
testified on amendments to CSHB 4(TRA) and answered questions.
ROBERT BUTTCANE, Legislative and Administrative Liaison
Division of Juvenile Justice
Department of Health and Social Services
PO Box 110635
Juneau, Alaska 99811-0635
POSITION STATEMENT: Answered questions relating to HB 179.
LOREN JONES
CMH/API Replacement Project Director
Division of Mental Health & Developmental Disabilities
Department of Health & Social Services
PO Box 110620
Juneau, Alaska 99811-0620
POSITION STATEMENT: Answered questions relating to HB 179.
ERNIE TURNER, Director
Division of Alcoholism & Drug Abuse
Department of Health & Social Services
PO Box 110607
Juneau, Alaska 99811-0607
POSITION STATEMENT: Answered questions relating to HB 179.
CANDACE BROWER, Program Coordinator/Legislative Liaison
Office of the Commissioner
Department of Corrections
431 North Franklin, Suite 203
Juneau, Alaska 99801
POSITION STATEMENT: During discussion of HB 179, answered
questions relating to confiscation of an offender's permanent
fund dividend (PFD); during discussion of HB 4, answered
questions relating to proposed amendments to CSHB 4(TRA).
ALVIA "STEVE" DUNNAGAN, Lieutenant
Division of Alaska State Troopers
Department of Public Safety (DPS)
5700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Testified in support of HB 179 and answered
questions; answered questions relating to proposed amendments to
CSHB 4(TRA).
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: Provided testimony on HB 179 and answered
questions; answered questions relating to proposed amendments to
CSHB 4(TRA).
ELMER LINDSTROM, Special Assistant
Office of the Commissioner
Department of Health and Social Services (DHSS)
PO Box 110601
Juneau, Alaska 99811-0601
POSITION STATEMENT: Answered questions relating to proposed
Conceptual Amendment 2 to HB 179.
ACTION NARRATIVE
TAPE 01-49, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 11:19 a.m. Representatives
Rokeberg, James, Coghill, Meyer, and Berkowitz were present at
the call to order.
HB 40 - REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT
Number 0286
CHAIR ROKEBERG announced the first order of business, HOUSE BILL
NO. 40, "An Act providing for the revocation of driving
privileges by a court for a driver convicted of a violation of
traffic laws in connection with a fatal motor vehicle or
commercial motor vehicle accident; amending Rules 43 and 43.1,
Alaska Rules of Administration; and providing for an effective
date." [Possible amendments had been suggested and discussed at
the previous meeting, but none had been adopted.]
Number 0294
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), provided two written amendments, both of which he
indicated were requested by Representative Berkowitz; he
referred to his own testimony at previous hearings and noted
that he had no objection from the administration's standpoint.
MR. GUANELI first discussed Amendment 1, which read [original
punctuation provided]:
In Section 2 of the bill, add a new subsection as
follows:
(e) The findings made by the court under (a) of this
section are not admissible in a civil, criminal or
administrative action arising out [sic] the motor
vehicle accident.
MR. GUANELI explained that the findings the court has to make to
revoke someone's license for a year are: that the person
operated the motor vehicle, that the accident caused the death
of another person, and that the violation of the traffic laws
was a contributing factor. Those findings, which may be made by
a magistrate, perhaps in a perfunctory hearing, would not be
admissible in any further civil, criminal, or administrative
action.
MR. GUANELI told members he saw no problem with that, and that
the action should stand alone; if there were going to be further
civil litigation, for example, he believes the person ought to
have the opportunity to prove there was contributory negligence
[on the part of another] or to use another defense. He noted
that this amendment also was requested by the private attorney
[Mr. Carter] who had testified from Anchorage during the first
hearing.
Number 0412
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 1.
CHAIR ROKEBERG objected. He mentioned a supreme court case
allowing evidence [from] a criminal trial to be used as prima
facie evidence in a civil action; he asked how that differs
here.
REPRESENTATIVE BERKOWITZ answered that his own concern is
logistical as much as anything else. If evidence from a
[hearing before] a magistrate involving a traffic violation [is
allowed to be used in further proceedings], then it magnifies
everything else tied to the case and the significance of what
happened in front of the magistrate; logistically, there will be
delays and more costs. If the objective of the bill is to
ensure that someone who has killed someone else while driving
doesn't have his or her license, [the language in Amendment 1]
is the fastest way to make sure it happens. He pointed out that
other civil remedies, criminal cases, or administrative
consequences would still exist, but [Amendment 1] would remove a
serious logistical impediment to taking someone's license right
away.
Number 0536
REPRESENTATIVE JAMES noted that [Amendment 1] says, "The
findings made by the court". She pointed out that it doesn't
eliminate any evidence or negate having those same findings
found by someone else; therefore, it doesn't remove anybody
else's ability to try the case in any civil, criminal, or
administrative action.
CHAIR ROKEBERG asked whether the fact that there was a
conviction and a loss of the person's license still would be
admissible [in a further proceeding] because that wouldn't be a
finding, but would be a matter of public record.
MR. GUANELI said that is his own view of it, that the conviction
of the offender would remain [admissible], and that [Amendment
1] applies to the further findings.
REPRESENTATIVE BERKOWITZ clarified that the fact that the person
was convicted for crossing a double yellow line would be
admissible, for example, but not the finding that the crossing
of the double yellow line led to the accident and the other
consequences.
Number 0625
CHAIR ROKEBERG withdrew his objection. There being no further
objection, Amendment 1 was adopted.
Number 0654
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 2,
which read [original punctuation provided]:
Section 2, Page 2, lines 12-23, delete and replace
with:
(c) A court revoking a person's driver's license,
privilege to drive, or privilege to obtain a license
under (a) of this section may consider a request for a
limited license by the person. A court may not grant
a limited license if another statute prohibits a
limited license for violation of its provisions. A
court shall require a certification of employment to
prove a claim based on the person's employment, and a
certification of need by a licensed health care
practioner [sic] to prove a claim based on care for
another person. After a review has been made of the
person's driving record and other relevant
information, the court may grant limited license
privileges for all or part of the period of revocation
if the court finds that limitations can be placed on
the license that will enable the person to drive
without danger to the public, and that without a
limited license
(1) the person's ability to earn a livelihood
would be severely impaired; or
(2) the person would be severely impaired in
acting as the primary care giver for someone with a
debilitating medical or mental condition.
REPRESENTATIVE BERKOWITZ referred to discussion at the previous
hearing about the impacts on people who require a caretaker [who
drives], in addition to impacts on people's livelihood. He
concluded that Amendment 2 allows a person to maintain a partial
license in order to care for someone else.
Number 0694
CHAIR ROKEBERG asked whether there was any objection. There
being no objection, Amendment 2 was adopted.
Number 0715
REPRESENTATIVE MEYER moved to report HB 40 as amended out of
committee with [individual recommendations and] the attached
fiscal notes. There being no objection, CSHB 40(JUD) was
reported out of the House Judiciary Standing Committee.
HB 4 - OMNIBUS DRUNK DRIVING AMENDMENTS
Number 0732
CHAIR ROKEBERG announced the next order of business would be,
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) and proposed amendments.]
[Because of their length, some amendments to CSHB 4(TRA)
discussed or adopted during the meeting are found at the end of
the final section of minutes for this date on HB 4. Shorter
amendments are included in the main text.]
CHAIR ROKEBERG stated his understanding that Amendments 24 and
[26] were no longer necessary because of the deletion of the
diversion program; Amendment 32 was included in Amendment 11;
and Amendment [33] was included in Amendment 34, as amended.
REPRESENTATIVE BERKOWITZ, as sponsor of Amendments 24, [26], 32,
and [33], concurred.
CHAIR ROKEBERG called an at-ease from 11:30 a.m. to 11:32 a.m.
Number 0862
REPRESENTATIVE BERKOWITZ remade the motion to adopt Amendment
25, which had been withdrawn on 3/29/01 and which read [original
punctuation provided]:
Page 11
Delete, lines 2 - 11
Renumber accordingly
REPRESENTATIVE BERKOWITZ explained that he had concern about
this type of crime [of enabling]. Usually, crimes are written
about in the negative, "thou shalt not kill" or "thou shall not
steal." Here, however, people are affirmatively being required
to do something since anyone who allows a person who is not
validly licensed to drive is guilty of a crime. He suggested
that in a small community, most people would know whether
someone has a DWI (driving while intoxicated) conviction and is
not allowed to drive. He asked what happens if a neighbor sees
a person driving away, for example.
CHAIR ROKEBERG asked Ms. Seitz to explain what the current
"enabler" situation is, and what is being done in Section 18,
which [Amendment 25] would amend.
Number 0934
JANET SEITZ, Staff to Representative Norman Rokeberg, Alaska
State Legislature, explained that it is already a class A
misdemeanor to knowingly allow a person who is not validly
licensed to drive a motor vehicle. [Section] 18 keeps that same
standard of "knowingly allowing" and still makes it a class A
misdemeanor. However, if a person knows that someone isn't
validly licensed because of a drunk-driving conviction and still
lets an unlicensed driver drive a motor vehicle, then that first
person's license can be revoked and there is a minimum fine of
$1,000.
REPRESENTATIVE BERKOWITZ pointed out that the current statute,
as he had just read it, is actually more narrowly drawn in that
the crime of enabling only applies to people who own or control
the vehicle. In addition, because the language in Section 18 of
CSHB 4(TRA) appears to simply refer back to current statutory
language, he said he did not see what Section 18 accomplished.
MS. SEITZ reiterated that Section 18 adds a [$1,000] fine and a
[30-day] license revocation for a violation of the enabler
statute. She also noted that a forthcoming amendment will
address the concerns regarding domestic violence (DV).
Number 1123
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), clarified that AS 28.35.030(n), as referenced in Section
18, relates to felony DWI. Thus a person who violates the
enabler statute is only subject to the penalties being added by
Section 18 if the unlicensed driver who is allowed to drive the
enabler's vehicle is unlicensed due to a felony DWI conviction.
REPRESENTATIVE JAMES asked how it could be proven that the
enabler knew [the driver did not have a valid license because of
a felony DWI].
MR. GUANELI replied that in many cases, it would be difficult;
the people most likely to know a person has been convicted of
felony DWI would be family members, household members, and close
friends. He surmised that this is what has prompted the Alaska
Network on Domestic Violence and Sexual Assault (ANDVSA) to come
forward and ask for an exemption for victims of DV.
REPRESENTATIVE JAMES noted that there were more issues at stake
than just the DV issue, and she opined that [via Section 18]
they were reaching out to make some really bad law by making
criminals of people who ought not be criminals in an attempt to
keep [DWI offenders off the road]. She suggested they leave the
current [enabler statute] as is, and then perhaps simply raise
the class of violation for repeat offenses. She said she did
not agree with the concept of having the additional penalties be
dependent upon another person's conviction of a specific crime.
She also pointed out that in many instances, family members do
not have any control over a person's behavior, and thus
"knowingly allow" becomes hard to prove.
Number 1280
REPRESENTATIVE MEYER said he understood the intent behind
Section 18, which is that of asking family members to help keep
repeat DWI offenders off the road. He said, however, that he
understood Representative James's point regarding how hard it
will be to prove a person knowingly allowed an unlicensed person
to drive. He also acknowledged that in many situations
regarding chronic drinkers, there are DV elements involved.
REPRESENTATIVE BERKOWITZ, on the point of authorizing or
knowingly permitting, asked, if the spouse said "honey, don't
drive," and the person still went out and drove, what more would
the spouse have to do [under this provision]? Does the spouse
have to physically try to restrain the person from driving?
Does he/she have to call the police? He pointed out that one
component of how the crime of enabling materializes is that an
unlicensed driver goes out and drives, but he asked whether, by
simply saying "don't drive," the defendant who is charged with
enabling has satisfied the requirement that he/she did not
authorize/allow the unlicensed driver to drive. What has to be
done to prevent the individual from driving, he asked.
REPRESENTATIVE JAMES pointed out that this example could also
apply to a son, daughter, mother, father, neighbor, girlfriend,
or boyfriend; the language in Section 18 is reaching towards a
huge realm of folks.
MS. SEITZ responded that the person who owns or controls the
vehicle could take the keys away, for example.
REPRESENTATIVE BERKOWITZ rebutted that taking the keys away is a
physical act. He again asked whether it would suffice as a
defense if the defendant said he/she told the unlicensed driver
not to drive.
MS. SEITZ said that as long as the person is not in fear of
physical harm, aside from taking the keys away, the person could
also park the car elsewhere. She noted that even without
Section 18, which refers only to allowing a felony drunk driver
to drive, enabling is still a crime, albeit a misdemeanor. She
added that she would not want someone with a felony DWI
conviction to drive her vehicle.
REPRESENTATIVE BERKOWITZ said, "But what would you do to stop
them?"
MS. SEITZ said she would say "no" and take the keys away, if she
knew about it. She remarked that she had done these things
before, and she likened it to being a designated driver or
taking the keys away from a friend who is too drunk to drive.
Number 1460
REPRESENTATIVE BERKOWITZ asked whether, under "this" statute,
she would be required to call the police.
MS. SEITZ said she could not address how attorneys would
interpret "knowingly allowing", but that she, personally, would
not have any problem calling the police if a drunk driver drove
off in her vehicle.
REPRESENTATIVE COGHILL asked how they could hold someone
accountable for control of the vehicle. He also noted that if
forthcoming amendments authorized exceptions, then everyone
would want an exception. He acknowledged that current statute
already [creates an assumption of] responsibility, but now, via
Section 18, "heavy duty" fines will be imposed on people who do
not live up to that responsibility. He wondered how a court
would view that for purposes of making a judgment because it has
not been given any latitude; the language in Section 18 says
"shall" revoke the license and "shall" impose the fine. He also
noted that compared to the penalties imposed on the DWI
offender, the penalties imposed on an enabler are significant.
He asked how responsibility would be determined, both under
current statute and under Section 18, in cases where the vehicle
has more than one owner.
MS. SEITZ responded that when the vehicle has a single owner,
that owner, in addition to being required to have insurance on
the vehicle, has a responsibility to society to ensure that the
vehicle is operated in a safe manner regardless of who is
driving it. She surmised that these same responsibilities also
apply to all owners of a vehicle when the vehicle has more than
one owner.
REPRESENTATIVE JAMES opined that if the goal was to stop people
from driving drunk and/or driving without a license, Section 18
did not necessarily accomplish this goal because the
circumstances surrounding enabling are going to occur anyway,
regardless of the punishment; the person who owns the vehicle is
just going to hope and pray that the unlicensed driver doesn't
get caught. She suggested that a person who simply lets a
person with a past felony DWI conviction drive to the store, for
example, should not necessarily have the larger penalty as
compared to the penalty imposed for DWI. She offered that
probably everybody has had the experience of dealing with a
family member or friend who has driven drunk; from her own
experience with her brother-in-law, she noted that her only
recourse was to get out of the way or risk personal injury.
Number 1729
CHAIR ROKEBERG remarked that the language in Section 18 came as
a recommendation from the DUI Prevention Task Force. He asked
Mr. Guaneli whether anyone had ever been prosecuted under an
"enabling" statute. He opined that most people don't even know
the enabling statute exists, and he suggested that Section 18
would ensure that people became aware that there is a law
against enabling.
MR. GUANELI acknowledged that the enabling statute is not
commonly used because usually when the police have arrested
someone for driving without a license (DWL), they do not
investigate the circumstances further; the crime of DWL is
sufficient for an arrest. He said it is the rare circumstance
when [law enforcement] has the knowledge that someone else let
the DWL offender drive, or requested it. He noted that as a
prosecutor, he would be more inclined to prosecute a person who
requested that a person without a license drive, rather than
prosecute the family member after the unlicensed driver simply
grabbed the keys to car and took off. He said he would never
expect anyone to make affirmative efforts to stop someone else
from driving, with the exception of perhaps imposing a higher
standard of duty on the parent of a child who does not have a
valid license but who takes the keys to go driving.
REPRESENTATIVE JAMES related the story of a man who was staying
in her motel; he would go barhopping via taxi because he did not
want to drive while he was drinking. One night, after arriving
back at the motel and after spending money on taxi fares, he
decided to drive to the store because he needed cigarettes, at
which time he got picked up for DWI. Although the man was
serious about not driving while he was drinking, because he was
intoxicated by the time he got back to the motel, he had lost
his sense of judgment and simply got behind the wheel of his car
to run a small errand.
REPRESENTATIVE MEYER remarked that he would support Amendment 25
because it appeared to him that the crime of enabling is already
covered by current statute. He added that from his experience
with families that have to deal with the problems created by
alcoholism, the last thing the family needs is to have to go to
court to prove how they tried to stop someone from driving
without a license.
Number 1930
CHAIR ROKEBERG said he was maintaining his objection to
Amendment 25; he said he felt they were simply [strengthening
current] law via Section 18, and he did not want to lose it
altogether via an unamended Amendment 25.
Number 1960
A roll call vote was taken. Representatives James, Coghill,
Meyer, and Berkowitz voted for Amendment 25. Representative
Rokeberg voted against it. Therefore, Amendment 25 passed by a
vote of 4-1.
CHAIR ROKEBERG, on the topic of the enabler statute, made a
motion to adopt [Amendment 39A, 22-LS0046\S.29, Ford, 3/30/01],
which read:
Page 11, line 2:
Delete "a new subsection"
Insert "new subsections"
Page 11, following line 11:
Insert a new subsection to read:
"(d) The provisions of (c) of this section do
not apply to a person who violates (c) of this section
because another person commits an act of domestic
violence. In this subsection, "domestic violence" has
the meaning given in AS 18.66.990."
CHAIR ROKEBERG noted that [as written, Amendment 39A] is no
longer necessary [due to the deletion of Section 18 via
Amendment 25], but suggested that they change [the reference to
subsection (d) to reflect subsection (c), and the two references
to subsection (c) to reflect subsection (b)]. He said this
change to Amendment 39A would give the ANDVSA assistance with
existing law regarding the issue of DV.
REPRESENTATIVE JAMES, with regard to the language "because
another person commits an act of domestic violence", asked if
[Amendment 39A] was saying that there first has to have been an
altercation before this exception to the enabler statute would
apply. She remarked that they should give a person who is
feeling threatened by DV the same defense as would be given to a
person who is already a victim of DV.
MS. SEITZ, on that point, referred to [Amendment 39B], noting
that it was language proposed by the ANDVSA via [the DOL], which
read [original punctuation provided]:
Add a new section to the bill:
*Sec. _____ AS 28.15.281(b) is amended to read:
(b) A person may not authorize or knowingly
permit a motor vehicle owned by the person or under
the control of the person to be driven in this state
by a person who is not validly licensed. This
subsection does not apply to a victim of domestic
violence who authorizes or permits a motor vehicle to
be driven due to fear of the perpetrator of domestic
violence. In this subsection, "domestic violence" has
the meaning given in AS 18.66.990.
Number 2060
CHAIR ROKEBERG withdrew Amendment 39A. Chair Rokeberg then made
a motion to adopt Amendment 39B.
Number 2063
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence
and Sexual Assault (ANDVSA), explained that the ANDVSA initially
had concern that victims of DV would be charged for enabling
under Section 18, which has since been deleted. Upon further
review of the current enabling statute - [AS 28.15.281] - under
[subsection] (b) a victim of DV could still be charged; for this
reason the ANDVSA recommends, via Amendment 39B, that
[subsection] (b) be amended to exclude a victim of DV if he/she
authorizes or permits a vehicle to be driven due to fear of the
perpetrator of DV. She added that Amendment 39B also specifies
DV to have the meaning given in AS 18.66.990. She agreed with
Representative James that often there is not a direct act of DV;
for this reason, "fear" of the perpetrator has been included in
Amendment 39B
REPRESENTATIVE COGHILL, in reference to language in Amendment
39B that says "apply to a victim of domestic violence", asked if
there would be difficulty in getting this exception to apply in
cases where DV had not yet occurred; could simply the fear of DV
be enough, he wondered, without actually having someone be a
victim of DV under the DV statute, or would somebody have to
prove that he/she was a victim of DV.
CHAIR ROKEBERG noted that the language in Amendment 39B would
constitute a defense. He asked if the question is whether the
threat of DV constitutes an act of DV under AS 18.66.990.
MR. GUANELI explained that there is a principle under Alaska law
called the defense of necessity that says that any crime can be
excused if the reason for committing the crime is to prevent
some greater harm or greater wrong from occurring. He noted
that the classic example is that of a person who breaks into a
cabin in the wilderness, and while this is normally considered
the crime of burglary, if the reason for doing so was to keep
from freezing to death at night, then the person is excused. He
added that the offense of enabling is also subject to the
defense of necessity; however, the defense of necessity has to
be proven by the defendant. He used the example of a very sick
person who requests that a person known to be without a valid
license drive him/her to the doctor/hospital; in this instance,
it can be shown that the person committing the crime of enabling
had sufficient reason because he/she was trying to prevent a
greater harm from occurring.
MR. GUANELI explained that Amendment 39B recognizes a very
narrow class of persons who have been victims of DV, and due to
fear of further violence, they are not required to come in and
actually prove it; it is enough that there is that history of
DV. But, to stop all the exceptions from swallowing the rule,
if a person has never been the victim of DV and uses the excuse
of being afraid of DV, then that person should have the
obligation of coming forward and testifying to that effect to
the jury.
MS. HUGONIN noted that Amendment 39B puts the exemption at the
level of the investigation when the law enforcement officer is
looking into the crime; this is where the ANDVSA would like to
see it, rather than at the level of the trial. Law enforcement
officers are becoming better trained at recognizing the
principal physical aggressor in DV cases, she said, and for this
reason, any concerns regarding charging a victim of DV should be
alleviated.
Number 2319
CHAIR ROKEBERG asked if there were any objections to Amendment
39B. There being no objections, Amendment 39B was adopted.
Number 2370
CHAIR ROKEBERG made a motion to adopt [Amendment 16A, 22-
LS0046\S.8, Ford, 3/21/01]. [Amendment 16A is provided at the
end of the final section of minutes for this date for HB 4.] He
went on to say that a substantial portion of [Amendment 16A] is
mirroring effects - when provisions of CSHB 4(TRA) altered AS
28.35.030 with regard to vehicle forfeiture, another statute, AS
28.35.032, should have also been altered. He added that AS
28.35.032 relates to refusal to take a chemical test - a
breathalyzer - for blood alcohol concentration (BAC) level.
REPRESENTATIVE BERKOWITZ noted that previously there had been
superceding amendments.
CHAIR ROKEBERG confirmed that there were some sections of
[Amendment 16A] that had already been addressed, and he
mentioned that there were other sections that might need
alteration.
TAPE 01-49, SIDE B
Number 2456
MIKE FORD, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency, said
that [Amendment 16A] does several things. The primary changes
are in the areas of impoundment of motor vehicles and forfeiture
of motor vehicles, and other changes are intended to conform to
changes made via adoption of CSHB 4(TRA).
CHAIR ROKEBERG remarked that [Amendment 16A] would make changes
allowing the state's vehicle forfeiture procedure to mirror much
of what occurs in the municipalities of Anchorage and Fairbanks
regarding vehicle forfeiture via a civil administrative
proceeding; these changes lower the fiscal note by about
$300,000.
MR. FORD said that the first portions of [Amendment 16A] would
add a new section to CSHB 4(TRA) that deals with what happens
when a person is before the court - after arrest - for DWI. The
court would be allowed to impose some additional conditions of
release, primarily relating to a vehicle that has been
impounded. This is aimed at ensuring that the vehicle returns
to the jurisdiction of the court so that it can be forfeited if
that proves necessary. He confirmed that this would be
accomplished by establishing a return bond.
MR. FORD referred to page 4, lines 3-6 [of Amendment 16A], and
said this was a fix that would allow the permanent revocation of
driver's license to take effect; it eliminates a conflict in
CSHB 4(TRA). He added, however, that he believed this portion
was already addressed via the adoption of a previous amendment.
He then referred to the next section on page 4 of [Amendment
16A] and said these areas affect what happens to a person after
he/she is arrested and convicted of DWI, and involve removing
provisions that allow the court to forfeit a vehicle and
replacing them with provisions that say the court shall impound
and shall forfeit a vehicle if the conviction is for a second or
subsequent offense. He confirmed that for a first offense the
vehicle "shall" be impounded and "may" be forfeited. To recap,
for all offenses there are 30-day impoundment provisions; for
first-time offenses, forfeiture is discretionary. He added that
there are also provisions that protect the rights of co-owners,
which can include the use of a limited license and/or limited
registration, and the rights of owners of vehicles whose
vehicles were used in the DWI offense. He noted that there are
also provisions for use of return bonds included in this section
of [Amendment 16A].
Number 2245
MR. FORD noted that the portion of [Amendment 16A] on page 5,
lines 22-28, had already been addressed by adopting Amendment
12. He added that some of the provisions in [Amendment 16A] are
included because all of the other amendments stand alone: there
are some duplicate provisions regarding felony DWI provisions,
which take up a number of the pages in [Amendment 16A]; there
are also duplicate provisions regarding what the court would do
in case of felony DWI. He noted that the refusal provisions are
brought into compliance per the instructions he was given to
treat refusal and DWI in the same manner. Thus if a person is
convicted of refusal as opposed to DWI, the person suffers the
same consequences. He explained that it is not possible to
simply say in statute that the penalties for refusal are the
same as those for DWI because the two are separate provisions in
statute. They are separate offenses and not identical; hence,
per the drafting manual, when one provision is changed, the
language has to be made consistent in each separate provision.
MR. FORD referred to page 11 - starting on line 29 of [Amendment
16A] - and said this provision requires the court to order
surrender of the registration plates. Thus, not only does a
person lose his/her license and registration, but the "plates"
for the vehicle are also taken away.
CHAIR ROKEBERG noted that another amendment addresses impounding
the plates. He asked whether there would be any inconsistencies
between the two amendments, of if it would be possible to simply
conform the two amendments later.
MR. FORD said he had assumed that the committee would give him
permission to make conforming changes, and he noted that
although he has not had an opportunity to compare the two
amendments, he did not think there would be any conflicts.
REPRESENTATIVE JAMES asked what happens when the registration is
revoked on a vehicle that has a lien holder.
MR. FORD responded that no one's property rights are being taken
away; the lien holder will still have an interest in the
vehicle. He mentioned that there are provisions that would
protect lien holders, even in cases of vehicle forfeiture.
CHAIR ROKEBERG added that the lien holder has different forms of
recourse depending on what the crime and accompanying penalties
are.
Number 1950
CHAIR ROKEBERG made a motion to amend [Amendment 16A] on page 9,
line 10, such that "$2,000" would be changed to "$10,000".
There being no objection, the amendment to [Amendment 16A] was
adopted.
MR. FORD referred to Section 53 on page 12 of [Amendment 16A],
and said this was the impoundment provision. He explained that
a motor vehicle, aircraft, or watercraft can be impounded and
held for up to two days - unless the court orders a continuation
of the impoundment - if the impoundment is incident to a valid
arrest. He added that if the person is convicted of either DWI
or refusal, the court has to order impoundment for a period of
at least 30 days.
CHAIR ROKEBERG asked whether someone convicted of, or arrested
for, impairment - wherein the BAC level is less than .08 - could
also have his/her vehicle impounded. He said his concern is
that there is a provision in this portion of [Amendment 16A]
that requires that impoundment costs be waived or refunded if
the person is not convicted under [AS 28.35.030].
MR. FORD assured the committee that DWI includes driving with a
BAC level above .01 and/or under the influence of controlled
substances, and therefore a violation of the impairment statute
would still be considered a violation of [AS 28.35.030]. He
next pointed out that other sections of [Amendment 16A] attempt
to provide for what happens when a person's vehicle is impounded
- such as how a person can reclaim a vehicle, what happens to
vehicles that are not reclaimed, and proper handling of vehicles
that are impounded.
REPRESENTATIVE MEYER agreed that vehicle forfeiture for second-
time offenses is a policy call. He offered that the vehicle
forfeiture program should pay for itself through sale of the
vehicles.
CHAIR ROKEBERG clarified that prior testimony indicated many
forfeited vehicles are kept for use by law enforcement, although
he surmised that there would be a positive impact on the fiscal
note. He mentioned that there are concerns regarding property
rights of co-owners and lien holders. In defense of mirroring
the vehicle forfeiture proceeding with that of the Anchorage and
Fairbanks municipalities, he said that the regime in [Amendment
16A] has been proven to work; in this way, vehicle forfeiture
will occur as a result of a civil action instead of a criminal
action, which should significantly lower the fiscal note, by
over $300,000.
Number 1650
REPRESENTATIVE JAMES mentioned that she thought the proceeds of
vehicle forfeiture should be appropriated by the legislature
before being distributed; anytime something of value is taken
in, it should be reflected in the budget process.
CHAIR ROKEBERG suggested that by adopting [Amendment 16A], a
fiscal note could be developed that would reflect cost savings.
He mentioned an administrative fee of $160 and return bonds from
$500 to $2,000, both of which will help the vehicle forfeiture
program be self-financed as it was designed to be. He added
that many organizations across the state, including Mothers
Against Drunk Driving (MADD), strongly support forfeiture
provisions.
REPRESENTATIVE JAMES remarked again that there is still a need
to account for proceeds from vehicle forfeiture; she did not
want law enforcement to retain [or sell] vehicles without
indicating the [expenses or savings] to the agency.
CHAIR ROKEBERG mentioned that in response to previous
discussion, there are also provisions that will make it easier
and less expensive for law enforcement agencies in the rural
areas to dispose of forfeited vehicles.
REPRESENTATIVE BERKOWITZ commented that a number of years ago,
Cordova had a big problem regarding disposition of forfeited
vehicles. On the point of mandatory vehicle forfeiture, he said
he has concerns; as a general policy consideration, he said
vehicle forfeiture ought to be discretionary.
CHAIR ROKEBERG commented that a forthcoming amendment would make
impoundment for a second offense discretionary.
Number 1506
REPRESENTATIVE BERKOWITZ drew attention to page 1, line 9, of
[Amendment 16A], and said that this language was mandating
vehicle forfeiture for an FTA - failure to appear. He said he
could think of many reasons why the state might not want to
forfeit a vehicle, and although the language is very clean,
discretion is being taken away with regard to vehicle
forfeiture.
CHAIR ROKEBERG responded that he did not think that was the
case, particularly if discretion for impoundment on the second
offense is placed back in [CSHB 4(TRA)]
MR. FORD acknowledged that this is a major question for the
committee: exactly how much leeway does the committee want to
give the court? As it stands now, the court has the option of
forfeiting or not forfeiting. [Amendment 16A] restricts that
discretion considerably and says, "You will forfeit on a second
or subsequent offense. And you will impound on a first
offense."
REPRESENTATIVE BERKOWITZ pointed out that although on some level
discretion lies with the court, it also lies with the
prosecutor, who can say, "We don't want to forfeit this vehicle;
thanks, but no thanks."
CHAIR ROKEBERG reminded the committee that this is the fashion
in which vehicle forfeiture has been handled in Anchorage for
some time, without any difficulties; it is a proven system.
REPRESENTATIVE BERKOWITZ argued that in the context of a case,
it gives the state a lot of leverage to be able to say it is
going to forfeit a person's vehicle if that person does not
"deal." And although the therapeutic court has an "override,"
it is a pilot program that is not available to everybody. From
the prosecutor's perspective, he added, the more "tools" there
are in the "tool bag," the better it is for rapid disposition of
cases, and vehicle forfeiture provides a huge handle.
CHAIR ROKEBERG said that although he did not disagree with
Representative Berkowitz's points, he was striving for
consistency with regard to how vehicle forfeiture is done in
Anchorage and Fairbanks at the municipal level.
REPRESENTATIVE MEYER concurred that vehicle forfeiture is a
powerful tool. On the point of forfeiting "clunkers," he
commented that it balances out when the municipality forfeits a
Mercedes.
CHAIR ROKEBERG remarked that according to his research coupled
with what he has heard at prior meetings, including what he has
been hearing from prosecutors, vehicle forfeiture gets the
attention of DWI offenders.
Number 1350
REPRESENTATIVE BERKOWITZ countered that for him, this is one of
the "rubs" with how government operates:
What we tend to do in the legislature is impose
requirements on the folks in the field. We say "this
is what you shall do," and when we do that, we
withdraw their ability to exercise discretion. And at
some point, we need to trust the people who are
actually executing the laws to employ their own
discretion to come up with the best result. And when
we say, "You will forfeit a vehicle," what we're
telling the folks in the field is: "We're not giving
you any discretion."
CHAIR ROKEBERG responded by saying there is a feeling among the
prosecutors with whom he has talked that the statutory minimum
[penalty] established by the legislature becomes the default-
basis for the decision by the court. Thus if courts are given
100 percent discretion, they will not be forfeiting vehicles.
REPRESENTATIVE JAMES commented that she thinks there are a lot
of instances in existing law where there is a presumption of
sentence, and many sentences have been applied that ought not to
have been applied.
REPRESENTATIVE BERKOWITZ, on the point of mandating vehicle
forfeiture for FTA, asked if any constitutional problems might
arise for imposing penalties that are disproportionate to the
offense, such as forfeiting both the vehicle and the return
bond.
MR. FORD acknowledged that the state cannot acquire property
through civil forfeiture when it is owned by an innocent third
party, and that the courts have criticized the practice of
impoundment for punitive reasons rather than public safety
reasons.
REPRESENTATIVE BERKOWITZ pointed out that [Section 4 of
Amendment 16A] mandates not only forfeiture of the return bond,
but also forfeiture of the vehicle as a punitive measure.
MR. FORD concurred with that interpretation.
Number 1102
CHAIR ROKEBERG, in response to Representative Berkowitz, noted
for the record that severability is implicit by statute. He
asked whether it would be feasible to modify the FTA provision.
MR. FORD noted that the FTA provision was patterned after the
Municipality of Anchorage's provision, and he did not know
whether there has been any litigation on this provision to date.
REPRESENTATIVE MEYER remarked that the municipal ordinance has
been in effect since 1995, and he surmised that litigation would
have occurred by now, if ever.
MR. FORD, in response to questions, said that the provision sets
conditions of release; therefore, the decision by the court to
forfeit the interest in the vehicle can be appealed.
REPRESENTATIVE BERKOWITZ noted that under the provisions
outlined in [Amendment 16A], the forfeiture of the vehicle for
FTA is part of a civil proceeding, yet FTA itself can be
considered a criminal offense; since one of the effects of
making vehicle forfeiture a civil proceeding is to remove the
public defender from the process, he asked how someone would
move to get his/her vehicle back in a situation in which the
civil proceeding is tied to a criminal proceeding.
MR. FORD offered that the person is still entitled to notice and
hearing before the vehicle is actually forfeited. He
acknowledged, however, that the language in Amendment 16A does
not appear to give the person any leeway.
REPRESENTATIVE JAMES made a motion to recess the hearing on [HB
4] in order to take up HB 177. [The hearing on HB 4 was
recessed until later in the meeting, with Amendment 16A, as
amended once, still pending.]
CHAIR ROKEBERG called for a recess at 12:40 p.m. He called the
meeting back to order at 1:20 p.m.
HB 177 - CAMPAIGN FINANCE: CONTRIB/DISCLOS/GROUPS
Number 0859
CHAIR ROKEBERG announced the next order of business, HOUSE BILL
NO. 177, "An Act placing certain special interest organizations
within the definition of 'group' for purposes of Alaska's
campaign finance statutes; providing a contingent amendment to
take effect in case subjecting these organizations to all of the
statutory requirements pertaining to groups is held by a court
to be unconstitutional; requiring certain organizations to
disclose contributions made to them and expenditures made by
them; requiring disclosure of the true source of campaign
contributions; and providing for an effective date." [CSHB
177(STA) was before the committee.]
[Because of their length, the amendments to CSHB 177(STA) that
were discussed during the meeting are found at the end of the
minutes for HB 177.]
Number 0826
REPRESENTATIVE BERKOWITZ said he had two amendments to offer,
which were being copied and distributed to members.
CHAIR ROKEBERG noted that the committee had taken testimony in
the public hearing of HB 177 [held on 3/30/01].
Number 0802
REPRESENTATIVE BERKOWITZ explained that Amendment 2 [which was
discussed first] would make campaign finance laws apply to
issues and initiatives, in addition to candidates. He added
right upfront that that would be unconstitutional, but he
pointed out that the fact that things have been unconstitutional
has not barred the legislature from trying to set policy in
other directions. He said that the reason it would be
unconstitutional was because the [U.S.] Supreme Court said that
there is nothing to be corrupted within an issue or initiative,
unlike with a candidate who receives large sums of money from an
individual and thereby becomes unduly swayed. Representative
Berkowitz added that he thinks the reality of politics is such
that issues and individuals associated with issues can be
tainted by large sums of money coming to those issues. He
posited that current law was unconstitutional, and one way to
get the [U.S.] Supreme Court to revisit and reassess issues in
light of new political realities is to "push the envelope" a
little bit. He added that he thought the envelope should be
pushed by saying rules that apply to individuals should also
apply to issues.
Number 0669
REPRESENTATIVE JAMES responded that she tended to agree in some
ways with Representative Berkowitz on this issue, but she
disagreed with the premise that the reason for having campaign
finance reform and monetary limits was because a legislator's
vote could be bought. She said that she believed the only issue
addressed by campaign finance rules was the public's right to
know. She said she agreed that with regard to issues and
initiatives, the money that is spent getting the message out to
the people is persuasive. And the more money spent on the
message, the more persuasive it can be. Further, [the message]
is not always a full picture of the issue.
REPRESENTATIVE JAMES added that having said this, she tends to
agree that wherever there is money involved in affecting policy
in the state, either by law or by choice, the public has a right
to know whose money is involved. She said that was the goal of
HB 177. She added that she thinks now is not the time to do
what Amendment 2 proposes because there is not sufficient time
for discussion of this complicated issue. She noted that she
would be willing to address that particular issue at some point
because she believes that policy-making initiatives and issues
are being bought and paid for without public awareness of the
source of the funds.
REPRESENTATIVE BERKOWITZ noted that in Alaska, a lot of time was
spent worrying about the effect of "outside money," particularly
on wildlife initiatives. He said that rather than limit who can
bring forth certain types of initiatives, his antidote would be
to ban outside money. With regard to outside money, an
individual's campaign is limited to $3,000; he said he thought
that something similar could be done with regard to initiatives.
Number 0490
REPRESENTATIVE JAMES said she disagreed that that approach would
be unconstitutional, so long as it was scheduled correctly.
REPRESENTATIVE BERKOWITZ commented that he was not speaking
against his own amendment but was instead saying that [the
legislature] could still have a lot of discussion on the subject
encompassed by it. He said he was using the opportunity
presented by having campaign finance legislation before the
committee to have some of this discussion. He added that he
might offer an amendment during the House floor session that
would specifically address outside money for initiatives and
issues.
Number 0440
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 2,
[22-LS0406\S.1, Kurtz, 3/30/01]. [Amendment 2 is provided at
the end of the minutes on HB 177.]
Number 0438
CHAIR ROKEBERG objected. He said that per the advice of
committee counsel, he would find it troubling to vote for
something that would be unconstitutional at this juncture. In
addition, he said he thought the sponsor of HB 177 would be
reluctant to accept Amendment 2 because it would broaden the
scope, and it was not the sponsor's intent to speak to this
issue. He added, however, that while he agreed with both
Representative James and Representative Berkowitz that this was
an issue worthy of discussion, the lateness of the hour
precluded further discussion.
Number 0365
A roll call vote was taken. Representative Berkowitz voted for
Amendment 2. Representatives James, Coghill, Meyer, and
Rokeberg voted against it. Therefore, Amendment 2 failed by a
vote of 1-4.
Number 0361
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 1,
[22-LS0406\S.2, Kurtz, 3/31/01] [Amendment 1 is provided at the
end of the minutes on HB 177.]
Number 0359
CHAIR ROKEBERG objected.
REPRESENTATIVE BERKOWITZ explained that Amendment 1 would
increase the penalties for violators of campaign finance laws.
CHAIR ROKEBERG disagreed with Amendment 1 based on the peculiar
complexities of the [campaign finance] laws, which he said he
thinks are in large part a barrier to candidate recruitment.
[The campaign finance laws] are so easy to run afoul of because
they are entirely too complex. In addition, he said he did not
think the new electronic format was user-friendly whatsoever.
The potential for making errors and not being in compliance with
the law was overwhelming at this juncture. He added that if the
whole context of the reporting requirements could be simplified,
then he might be more willing to look at an increase in fines,
and even increasing [violations] up to a felony level. But
given the current flux of campaign finance laws, he said he
thought it was inappropriate [to increase fines at this time].
He added, as an example, that current disclosure provisions
subject a person to penalties if he or she, through an
oversight, neglects to disclose financial losses from securities
held in a personal portfolio.
REPRESENTATIVE JAMES agreed that reporting requirements do pose
a deterrent to running for office. Many first-time candidates
violate campaign finance laws in ignorance; she added, though,
that ignorance is no excuse because a candidate is required to
read the entire campaign finance law. She said she did not have
any pat answers on how to make the [disclosure provisions] less
cumbersome and easier for people to understand, or, also, how to
encourage other people to run for the legislature. She added
that she would like to "open the door" in order to find people
to serve [in the legislature].
Number 0110
REPRESENTATIVE MEYER added that due to the current stiff
penalties, he had contacted the Alaska Public Offices Commission
(APOC) frequently during the course of his campaign, and that
[Amendment 1] would make the situation worse because a person
could potentially be a felon. He said he agreed that most
people wouldn't even attempt to run for office [because of the
complexity of current campaign finance laws], and if penalties
are increased, then those who do run for office would be
conferring with the APOC before every move.
CHAIR ROKEBERG asked if Amendment 1 was an "incumbent-
protection" amendment.
REPRESENTATIVE BERKOWITZ responded that he did not think
Amendment 1 put candidates at risk. He said what he had in mind
were "operatives who know how to circumvent the system, and do
so with little risk of any penalty."
CHAIR ROKEBERG countered that by "casting the net" in the way
that Amendment 1 was drafted, he took it to mean that everyone
would be "underneath that umbrella." He asked Representative
Berkowitz if this was correct.
REPRESENTATIVE BERKOWITZ responded that yes, everyone would be
under that umbrella, and he noted that he, too, called the APOC
all the time to ask questions.
TAPE 01-50, SIDE A
Number 0001
CHAIR ROKEBERG commented that [new candidates] would not have
the education and experience of reading the campaign finance
laws year after year as [incumbents] have, and thus it would be
a problem [for new candidates].
REPRESENTATIVE BERKOWITZ countered that as he said before, there
are people out there who know how to go around the rules.
CHAIR ROKEBERG said he was maintaining his objection to
Amendment 1, and asked if Representative Berkowitz would
withdraw Amendment 1.
REPRESENTATIVE BERKOWITZ said he was maintaining his offer of
Amendment 1.
Number 0045
A roll call vote was taken. Representative Berkowitz voted for
Amendment 1. Representatives Coghill, Meyer, James, and Rokeberg
voted against it. Therefore, Amendment 1 failed by a vote of 1-
4.
Number 0066
REPRESENTATIVE JAMES moved to report CSHB 177(STA) out of
committee with individual recommendations and the accompanying
fiscal note. There being no objection, CSHB 177(STA) was
reported from the House Judiciary Standing Committee.
AMENDMENTS
The following amendments to CSHB 177(STA) were discussed during
the hearing.
Amendment 2 [22-LS0406\S.1, Kurtz, 3/30/01] (discussed first;
not adopted)
Page 1, line 2, following "statutes;":
Insert "applying certain campaign finance
restrictions to ballot propositions and questions;"
Page 2, following line 5:
Insert a new bill section to read:
"* Sec. 3. AS 15.13.040(d) is amended to read:
(d) Every individual, person, or group making a
contribution or expenditure shall make a full report,
upon a form prescribed by the commission, of
(1) contributions made to a candidate or
group and expenditures made on behalf of a candidate
or group
(A) as soon as the total contributions and
expenditures to that candidate or group reaches $500
in a year; and
(B) for all subsequent contributions and
expenditures to that candidate or group in a year
whenever the total contributions and expenditures to
that candidate or group that have not been reported
under this paragraph reaches $500;
(2) [UNLESS EXEMPTED FROM REPORTING BY (h)
OF THIS SECTION,] any expenditure whatsoever for
advertising in newspapers or other periodicals, on
radio, or on television; or, for the publication,
distribution, or circulation of brochures, flyers, or
other campaign material for any candidate or ballot
proposition or question."
Renumber the following bill section accordingly.
Page 2, following line 30:
Insert new bill sections to read:
"* Sec. 5. AS 15.56.014(a) is amended to read:
(a) A person commits the crime of campaign
misconduct in the second degree if the person
(1) knowingly circulates or has written,
printed or circulated a letter, circular, or
publication relating to an election, to a candidate at
an election, or an election proposition or question
without the name and address of the author appearing
on its face;
(2) [EXCEPT AS PROVIDED BY
AS 15.13.090(b),] knowingly prints or publishes an
advertisement, billboard, placard, poster, handbill,
paid-for television or radio announcement, or other
communication intended to influence the election of a
candidate or outcome of a ballot proposition or
question without the words "paid for by" followed by
the name and address of the candidate, group, or
individual paying for the advertising or communication
and, if a candidate or group, with the name of the
campaign chair;
(3) knowingly writes or prints and
circulates, or has written, printed and circulated, a
letter, circular, bill, placard, poster, or
advertisement in a newspaper, on radio or television
(A) containing false factual information
relating to a candidate for an election;
(B) that the person knows to be false; and
(C) that would provoke a reasonable person
under the circumstances to a breach of the peace or
that a reasonable person would construe as damaging to
the candidate's reputation for honesty, integrity, or
the candidate's qualifications to serve if elected to
office.
* Sec. 6. AS 15.13.010(d), 15.13.040(h),
15.13.065(c), 15.13.084(1), 15.13.090(b), and
15.13.140 are repealed."
Amendment 1 [22-LS0406\S.2, Kurtz, 3/31/01] (discussed last; not
adopted)
Page 1, line 1, following "Act":
Insert "increasing the civil penalties and
amending the criminal penalties for violation of
Alaska's campaign finance statutes;"
Page 2, following line 5:
Insert a new bill section to read:
"* Sec. 3. AS 15.13.390(a) is amended to read:
(a) A person who fails to register when required
by AS 15.13.050(a) or who fails to file a properly
completed and certified report within the time
required by AS 15.13.040(d) - (f), 15.13.060(b) - (d),
15.13.080(c), 15.13.110(a)(1), (3), or (4), (e), or
(f) is subject to a civil penalty of not more than
$100 [$50] a day for each day the delinquency
continues as determined by the commission subject to
right of appeal to the superior court. A person who
fails to file a properly completed and certified
report within the time required by AS 15.13.110(a)(2)
or 15.13.110(b) is subject to a civil penalty of not
more than $1000 [$500] a day for each day the
delinquency continues as determined by the commission
subject to right of appeal to the superior court. A
person who violates a provision of this chapter,
except a provision requiring registration or filing of
a report within a time required as otherwise specified
in this section, is subject to a civil penalty of not
more than $100 [$50] a day for each day the violation
continues as determined by the commission, subject to
right of appeal to the superior court. An affidavit
stating facts in mitigation may be submitted to the
commission by a person against whom a civil penalty is
assessed. However, the imposition of the penalties
prescribed in this section or in AS 15.13.380 does not
excuse that person from registering or filing reports
required by this chapter."
Renumber the following bill section accordingly.
Page 2, following line 30:
Insert new bill sections to read:
"* Sec. 5. AS 15.56.012(c) is amended to read:
(c) Campaign misconduct in the first degree is a
class C felony [CLASS A MISDEMEANOR].
* Sec. 6. AS 15.56.014(c) is amended to read:
(c) Campaign misconduct in the second degree is
a class A [CLASS B] misdemeanor.
* Sec. 7. AS 15.56.016(b) is amended to read:
(b) Campaign misconduct in the third degree is a
class B misdemeanor [VIOLATION]."
[End of proposed amendments to CSHB 177(STA); CSHB 177(STA) was
reported out of committee.]
HB 179 - OFFENSES RELATING TO UNDERAGE DRINKING
[Contains brief references to SB 105 and HB 4 regarding loss and
allocation of an offender's permanent fund dividend (PFD) for
certain offenses.]
Number 0129
CHAIR ROKEBERG announced the next order of business, HOUSE BILL
NO. 179, "An Act relating to underage drinking and drug
offenses; and providing for an effective date." He noted that
he would reopen public testimony.
[Because of its length, Amendment 1, which was discussed and
adopted during the meeting, is found at the end of the minutes
for HB 179. Shorter amendments are included in the main text.]
CHAIR ROKEBERG called an at-ease at 1:39 p.m. He called the
meeting back to order at 1:42 p.m.
CHAIR ROKEBERG asked Mr. Guaneli to explain Amendment 1.
[Amendment 1 is provided with original punctuation at the end of
the minutes on HB 179.]
Number 0196
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), advised members that the administration originally had
proposed an underage-drinking bill; although [HB 179] adopted
many of the administration's proposals, it didn't adopt some
significant parts. Therefore, Amendment 1 goes back to the
administration's proposal.
MR. GUANELI referred to a chart [in packets], noting that
originally proposed was a graduated system in which a first-time
offender would be subject to certain penalties, a second-time
offender would be subject to more, and so on. One goal, at
least for the first offense, was to try to eliminate costs by
eliminating the right to a jury trial or to a public defender.
Toward that end, proposed in the first column of the chart under
first offense, is simply a fine [$600], all suspended, so that
the amount at stake doesn't trigger a jury trial; no jail time
is available, so that it isn't technically classified as a
"crime"; and no license revocation or community work service
(CWS) is available, which the courts have held would trigger a
right to a jury trial and a right to counsel, which drive up
costs for first-time offenders.
MR. GUANELI suggested that most [of these offenders] merely need
education on the effects of alcohol, with the hope that the
person will never re-offend. Therefore, all the functions
relating to a criminal case, including a jury trial and
attorneys, may not be necessary.
Number 0375
MR. GUANELI referred to the bottom section of the chart. He
emphasized the importance of referral to the Juvenile Alcohol
Safety Action Program (JASAP), whether for first-time offenders,
second-time offenders, or third offenders. He expressed the
belief is that all of the other options - including fines, jail,
revocation of licenses, or CWS - won't be nearly as effective as
having those options plus some form of screening as well as
education or treatment.
MR. GUANELI, still referring to the chart, addressed the second
offense, for which more is at stake in terms of money [$1,000,
with up to half suspended]. He pointed out that although jail
still isn't available, license revocation is, but only if the
person doesn't complete the treatment or the mandated 48 hours
of CWS.
Number 0464
MR. GUANELI pointed out that someone with a third offense
probably exhibits signs of alcohol dependence. As with drunk
driving, for each time a person is caught, the person likely
commits the offense numerous times. He said for third-time
offenders under age 18, it is felt by juvenile justice officials
that sending the person to the juvenile justice system is
valuable; it could be formally going to juvenile court or going
through the so-called informal adjustment process, in which a
probation officer enters into a probationary agreement [with the
offender]. This would allow more supervision and more program
opportunities.
MR. GUANELI addressed [third-time offenders] ages 18 and older,
noting that the options are more limited. Therefore, it will be
left up to a district court judge, who will have the full range
of penalties, including a fine [up to $1,000, all of which can
be suspended, according to the chart]; jail time, if appropriate
[up to 90 days, all of which can be suspended, according to the
chart]; six months' license revocation upon conviction, and six
more months' revocation if treatment isn't completed; as well as
96 hours of CWS.
MR. GUANELI said, in a nutshell, the proposal is for a graduated
set of penalties, with the JASAP referral, screening, and
treatment, which the offender must pay for, at each stage. He
emphasized that the committee must decide to what extent the
JASAP will be used, which will involve cost. He restated the
importance of the treatment alternative in order to have a
successful program.
MR. GUANELI offered to discuss the issue of wiping the slate
clean. He asked that any questions about treatment, including
both programmatic and budgetary aspects, be addressed to the
officials from the Department of Health and Social Services
(DHSS).
Number 0684
MARY MARSHBURN, Director, Division of Motor Vehicles (DMV),
Department of Administration, testified via teleconference. In
answer to a question by Chair Rokeberg, she specified that there
were 4,737 violations by people under the age of 21 in the
calendar year 2000. In response to a question by Representative
James, she said those were for minor consuming and possessing,
but not for drug use, fraudulent use of a driver's license,
"zero tolerance," or DWI (driving while intoxicated).
Number 0734
REPRESENTATIVE BERKOWITZ requested confirmation whether someone
who was underage and [charged with] DWI would also be charged
with minor consuming.
MR. GUANELI answered, "In all likelihood, we would charge both,
but the most common disposition in those cases is there's a plea
to the drunk-driving charge and a dismissal of the minor-
consuming charge."
CHAIR ROKEBERG suggested that is because there is a revocation
anyway for the [DWI].
MR. GUANELI said right now there is a $300 maximum fine for
minor consuming; for drunk driving, however, it goes up to
$5,000, potentially, and there is jail time.
Number 0807
MR. GUANELI, in response to Chair Rokeberg's mention of wiping
the slate clean, said hundreds or perhaps thousands of persons
under the age of 21 have prior convictions for minor consuming
under current law. Because of the way the law is structured,
and because of the way that the supreme court has implemented
the law, those persons were convicted without the right to a
jury trial or counsel. In Alaska law, he reported, a couple of
cases - one from the supreme court and one from the court of
appeals - say that if there is a conviction when a person didn't
have the right to a jury trial or to counsel, that conviction
cannot be used as a basis for enhancing a future penalty;
therefore, it cannot be used as the person's first offense under
a third-time-offender-type situation.
CHAIR ROKEBERG asked Mr. Guaneli to provide a memorandum to the
committee later, with a case citation.
MR. GUANELI agreed to do so. He continued, pointing out that if
a new system is created for the first, second, and third
offenses, none of those past convictions can be relied upon.
That is why he uses the phrase "wipe the slate clean": all
offenders will have to treated as first-time offenders under the
new system. He emphasized that having alcohol screening and
treatment will be even more important, because starting now, a
lot of so-called first-time offenders will actually be second-
or third-time offenders.
Number 0944
REPRESENTATIVE JAMES said a huge number of adults convicted of
DWI don't re-offend. She inquired about statistics on whether
underage DWI offenders offend again.
MR. GUANELI suggested it would be good to get statistics from
the DMV on the number of second-time minor-consuming offenses
that occur each year [Ms. Marshburn provided statistics later].
He recalled, from looking at statistics, that every year there
are roughly 5,000 total offenders, with about 1,000 being
second-time offenders and much fewer being third-time offenders.
In response to a suggestion by Representative James that it is
probably about the same rate, he agreed that the connection
could be made.
Number 1029
REPRESENTATIVE BERKOWITZ asked what the objective is with HB
179.
CHAIR ROKEBERG stated:
We're trying to dissuade juveniles from consuming
alcohol. I take it as a matter of public policy. And
it's up to this committee to figure out what the best
way to do that is. Historically, we had the "Use it,
Lose It" provisions for revocation that simplified
matters and decreased the cost.
CHAIR ROKEBERG told members he hoped they had all had a chance
to read the executive summary of C & S Management Associates,
which addresses some of the problems in the state. [Provided in
packets was page 83, "VI. Substance Abuse Treatment Resources
for Minors."] He said the question is how to make a transition
from the current unconstitutional Niedermeyer methodology of
"Use it, Lose It" to a new statute without losing credibility
with the youth of the state. He suggested the need, however, to
make a strong enough statement that it gets the attention of the
youth of the state.
Number 1130
REPRESENTATIVE BERKOWITZ said "Use it, Lose It" can't be used
with a driver's license, but perhaps could be used with the
[permanent fund] dividend (PFD).
CHAIR ROKEBERG said he didn't see why not, if it is
criminalized. He noted that pending legislation - SB 105 -
would have a similar impact.
Number 1170
MS. MARSHBURN spoke up to offer statistics. She said for the
year 2000, there were 2,700 first-time offenders, 900 second-
time offenders, and 1,000 "third and up."
REPRESENTATIVE JAMES commented that she doesn't believe these
young people are thinking as seriously about it upon the first
offense, in comparison to adults.
REPRESENTATIVE BERKOWITZ suggested the implication that "Use it,
Lose It" wasn't having a serious impact, either.
Number 1220
CHAIR ROKEBERG referred to his mention at an earlier hearing of
a 130 percent increase since implementation of "Use it, Lose
It." He suggested testimony would be mixed about how effective
it is. He noted that at a prior meeting, Mr. Melton [from the
Fairbanks Alcohol Safety Action Program (FASAP)] had testified
that he believed it was effective, as far as it went; however,
[Mr. Melton] is limited in the tools he uses.
MR. GUANELI responded that until three months ago, it was
believed that there was a system in which a person's driver's
license could be taken away, and a $300 fine was the only thing
available. However, now that the driver's license aspect has
been lost, all that minors face is a $300 fine for minor
consuming. If the combination of [revocation of a] license and
a $300 fine wasn't particularly effective, he cautioned, the
fine alone certainly wouldn't be very effective, which is what
would exist if nothing were done. On another subject, he said
the cost of giving a jury trial to all of these offenders would
be very high; he mentioned the fiscal note from the Public
Defender Agency (PDA).
CHAIR ROKEBERG estimated that the costs would be about the same
if either trials were required under the "Use it, Lose It"
scenario or this new program were to be instituted.
MR. GUANELI agreed, saying either everyone could be provided an
attorney and then the licenses would be revoked, or the cost for
the public defender alone would roughly equal the estimate from
the DHSS for the JASAP. He emphasized the desire to craft a
scheme whereby the costs for attorneys - including prosecutors
and public defenders - would be put instead into treatment, to
the extent possible; he acknowledged that the HB 179 doesn't do
that completely because it still provides attorneys for a second
and third offense.
Number 1316
REPRESENTATIVE COGHILL asked whether the intent is to facilitate
a way to get into the JASAP, for which there is only one pilot
program in Alaska at this point, or to facilitate a penalty
through the court system. He said it looks as if [Amendment 1]
is trying to facilitate a JASAP - which will have to be
facilitated somewhere in the system, through the DHSS, he
surmised - that incorporates a learning process and a penalty.
Number 1377
CHAIR ROKEBERG informed members that Ms. Nobrega had just handed
him "an example of the differential." He said for HB 179, the
[fiscal] note from the PDA is roughly $380,000. However, a
fiscal note had been requested for the current status, if jury
trials were to be enforced; he said the PDA's fiscal note for
that alone is $1.3 million.
Number 1414
REPRESENTATIVE JAMES asked where the parents fit in, and what
the juvenile status of the offender is.
CHAIR ROKEBERG pointed out that Mr. Guaneli distinguishes
between offenders under the age of 18 and those 18 and older.
He said the committee needs to deal with that, because there are
people between the age of majority and 21 years old, which is
the statutory age for drinking in Alaska. As for the parents,
he said an amendment will be offered that adopts Court Rule 11,
which says the parents are responsible for the fines and fees.
He suggested that parents would be looked to for fines and fees
for treatment, through a court order and/or by statute, if the
committee approves.
Number 1462
REPRESENTATIVE COGHILL mentioned a parent of a 17-year-old
having to go to court; he suggested that authority could come
into question. He said that many times there are family
struggles, in a variety of circumstances, that could exist.
REPRESENTATIVE BERKOWITZ noted that one standard condition of
adult probation or release is a "no driving" provision. Under a
JASAP, which is essentially a juvenile probation, he asked what
authority could there be for the probation officer or department
to impose the "no driving" condition.
ROBERT BUTTCANE, Legislative and Administrative Liaison,
Division of Juvenile Justice, Department of Health and Social
Services (DHSS), answered that what Representative Berkowitz had
mentioned is provided for in the proposal in [Amendment 1].
Third-time offenders would be subject to all of the provisions
and conditions of the delinquency chapter, [AS] 47.12; under
that, the department has some broad authorities to solicit the
participation of the parent and, in some cases, to have the
court order the participation of the parent.
MR. BUTTCANE continued, explaining that sanctions might include
suspension of a driver's license; he said that can be negotiated
as part of the delinquency disposition order - a formal order of
the court - or through an informal diversion upon a voluntary
agreement with the parent and the minor.
MR. BUTTCANE said the scheme proposed is that for those
juveniles diverted through a community diversion action, in
order for [the division] to be able to enter into an agreement
with them for an informal diversion, they would have to agree
that the minor would surrender his or her right to drive for a
period of six months, just as if he or she were adjudicated
delinquent through the formal delinquency process in court.
Number 1602
REPRESENTATIVE BERKOWITZ asked whether that condition of "no
driving" through a JASAP could be part of a first offense,
without running afoul of the Niedermeyer decision.
MR. GUANELI articulated the difference between a JASAP and
juvenile probation. He said a JASAP, as he understands it, is a
screening mechanism for determining one's need for alcohol
treatment and then is a referral mechanism to certain treatment
providers; the JASAP program may also, in some cases, provide
some of that treatment. He said he doesn't know that it is set
up to monitor other types of activities, however, as a probation
officer would be; it is not designed to be a "substitute
probation officer." It is only when there is a third-time
offender who has to go to juvenile court and get a juvenile
probation officer that this more formal agreement - that the
person will lose his or her license, or that the person simply
won't drive - will come into play.
MR. GUANELI pointed out that it couldn't be done on a first
offense because the possible loss of license triggers a right to
a jury trial and right to counsel; that is what the [state] has
been trying to avoid for the first offense in order to keep the
costs down. In response to Representative Berkowitz's question
regarding whether that is true even in a probationary context,
Mr. Guaneli said he believes that if loss of a valuable license
is a possible sanction, that triggers the right to a jury trial;
he specified that he thinks the courts would hold that, although
they may not have specifically addressed the question of whether
the loss of license came about as a part of probation.
REPRESENTATIVE BERKOWITZ said if it isn't as part of a
probationary period, there are less-rigorous protections
attached; the probation would tend to be focused on the
individual who had come under "probation supervision." He asked
whether that doesn't address some of the Niedermeyer concerns.
Number 1710
MR. GUANELI emphasized the desire to not be in the same
situation as two years ago, when the supreme court struck down a
scheme that had provisions that might have worked, but that
weren't guaranteed to do so. He stated his preference for
taking a cautious approach. He said something needs to be done;
the whole statutory scheme that the state had been operating
under for five or six years has been thrown out the window, and
it is uncomfortable for everyone in the justice system. He
restated his concern about triggering a right to a jury trial
for first-time offenders.
REPRESENTATIVE BERKOWITZ expressed concern that this is
constitutionally "suspect" because the third offense is
contingent upon a first and a second offense, which are done,
under this scenario, without recourse to a jury trial or a
public defender.
MR. GUANELI offered that a right to a jury trial and right to
counsel are still triggered for a second offense because the CWS
is mandated and because license revocation is possible.
REPRESENTATIVE JAMES asked why they are waiting until the third
offense to refer people to the juvenile justice system (JJS);
she suggested the referral to the JJS should come on the second
offense, and then perhaps there would not be a third offense.
Number 1829
LOREN JONES, CMH/API Replacement Project Director, Division of
Mental Health & Developmental Disabilities, Department of Health
& Social Services (DHSS), on the distinctions between the JASAP
and probation officers, said that within the adult Alcohol
Safety Action Program (ASAP), misdemeanant adults are monitored
for compliance with conditions of probations set by the court,
but ASAP does not have any powers to set additional conditions
of probation. He said he envisions the JASAP working in much
the same fashion: juveniles would be monitored for compliance
with conditions of probations set by the court, but neither [HB
179] nor any other portion of statute would give JASAP the right
to set conditions of probation beyond what is set by the judge
at sentencing. [The JASAP] would merely be providing the link
between the treatment/education system and the court.
REPRESENTATIVE BERKOWITZ offered that although the Niedermeyer
decision might have struck down a portion of a statute, some of
those same penalties are still available to the court if they
are causally related to the crime; if a juvenile comes in front
of judge for a minor consuming case and there is some link to
driving, a judge could still say it's minor consuming and that
one of the conditions of probation for which the fine is being
suspended is that the juvenile not drive.
MR. GUANELI concurred that if there was a link to driving, such
a condition could probably be set. However, in the fairly
typical situations when there is a beer party and a juvenile
gets arrested but has not been driving, that link does not
exist. He surmised that the vast majority of cases will not
involve that link to driving, and for those cases that do, he
said the judge has broader authority.
REPRESENTATIVE BERKOWITZ suggested that on an individual basis,
the prosecutor could make the argument that the juvenile drove
to the party. After looking at the statistics, he said he
questioned whether the "Use It, Lose It" law was that effective;
he reasserted the suggestion of seeking another mechanism to
deter juveniles from drinking such as possibly taking away the
offender's PFD, which would also offset the fiscal note.
Number 2023
CHAIR ROKEBERG, after commenting that the committee would
discuss the issue of the PFD further at a later time, said that
one of the problems surrounding the PFD is allocation of the
funds for treatment and education.
REPRESENTATIVE BERKOWITZ noted that with juveniles, there is a
greater likelihood that the PFD would be available for this
purpose because most juveniles will not have a backlog of other
debts owed. Using an estimate of 1,500 juvenile offenders at
approximately $2,000 per offender, he arrived at a rough total
of $3 million, which could be used to offset the cost of the
JASAP as portrayed by the fiscal note for HB 179.
CHAIR ROKEBERG said that looked like a good response for a third
offense but not for a first offense, which is a misdemeanor.
REPRESENTATIVE BERKOWITZ asked whether a trial and a defense
attorney would be required to take a PFD.
MR. BUTTCANE said that what Representative Berkowitz is
proposing makes sense to an adult offender, but to a 14-year-
old, "they totally don't get it." The PFD is invisible money.
Most 14- and 15-year-olds don't actually get the PFD; their
parents take that money and put it somewhere. The kids might
get $100, but the rest of it is in the college fund or being
used for other purposes. The 14-year-old is not thinking in
terms of cause and effect so as to be able to make a choice in
his/her behavior whether to have a beer that day and then
possibly lose the PFD next October. The cognitive developmental
processes of adolescents are such that they just don't think
that way; therefore, imposing the loss of a PFD as a sanction
will be lost on them. The driver's license is tangible by
comparison, and while the statistics show that "Use it, Lose It"
had a minimal impact, it did have an impact, particularly when
it was first implemented - there was a decrease in the number of
incidents of minor consuming.
Number 2142
MR. BUTTCANE, on the point of the $300 fine, noted that it is
"almost nothing." In fact, when looking at what the court
typically imposed in terms of fines, it was somewhere in the
neighborhood of less than $100 for a first offense, and for
third and subsequent offenses, the fines were averaging around
$180; these fines did not provide "a hook." The hook that
engaged kids was the loss of their driver's license; the
requirement that they get involved in alcohol information and
education, through some kind of screening process, in order to
get their licenses back from DMV, was a piece of that hook. He
noted that "we" still think that adolescent use of alcohol is a
rite of passage, and "we" have to instill in this social
consciousness the knowledge that there is now a "zero" tolerance
for underage drinking.
MR. BUTTCANE offered that the fine scheme in HB 179 is part of
that, wherein "we" are elevating the seriousness with which
adolescent use of alcohol is viewed. The $1,000 fine for a
second offense is not "chump change," and if parents are
required to participate in the process, then they are influenced
into thinking that maybe underage drinking isn't a rite of
passage that they want their children to go through. He noted
that the graduated sanctions incorporated by HB 179 depend on a
lot of little pieces; they depend on some accountability at the
first drink, which is where JASAP comes in - where it is not a
full-fledged probation sanction, but is an accountability-
monitoring situation that will make sure the offenders are
getting the information they need. A lot of these kids don't
understand how the body metabolizes alcohol, but in an alcohol
information school (AIS) they begin to learn; most offenders
don't come back for a second offense. For the few that do come
back a second time, the sanctions are increased - the offenders
have to do more CWS and pay an incredibly large fine, all of
which goes toward sending the message that "we" do not tolerate
underage drinking in this state.
MR. BUTTCANE explained that a third-time offender is probably a
kid that is "dependent" or alcoholic. Thus a whole different
approach needs to be taken such as mandatory treatment, higher
levels of accountability and supervision, and engaging the
family. The reason the delinquency system is put into play on
the third offense is that now these are not simply kids who are
making stupid choices; these are kids who are exhibiting levels
of dysfunction that need intrusive intervention via the
delinquency system. He surmised that under the scheme
encompassed in HB 179, if an 18-year-old is hit with a $1,000
fine for a second offense, that person is going to be thinking
that he/she can't afford this [behavior].
Number 2294
REPRESENTATIVE JAMES asked if there are statistics showing how
many second-time offenders do not become third-time offenders.
She opined that if a juvenile has committed a second offense,
then he/she will probably go on to commit a third offense.
MR. BUTTCANE noted that those statistics are available, and that
according to his recollection, approximately 70 percent of
juveniles with court convictions for minor consuming of alcohol
do not have a second offense. He also noted that these
statistics are different from the DMV statistics, which are tied
to loss of licenses and which involve cases that may or may not
have been in court.
MR. JONES added that the DHSS fiscal notes include a replication
of the DMV statistics to which Mr. Buttcane alluded. He noted,
however, that these charts do not include data for calendar year
1999, but do include data for calendar years 1995 (the start of
the "Use It, Lose It" law), 1996, 1997, 1998, and 2000. He
detailed that for 2000 there were approximately 2,200 first-time
offenders, close to 940 second-time offenders, and 1,048 third-
time offenders. With regard to the third-time offenders, he
confirmed that their previous offenses could have occurred in a
prior year, but the chart is simply showing that these offenders
lost their license for a third time due to a third offense that
occurred in 2000.
MR. GUANELI added that there is a long "look-back" provision for
these types of offenses; a person could have gotten his/her
first offense at the age of 14 and then the subsequent offenses
could have occurred years later.
Number 2416
REPRESENTATIVE JAMES, after looking at the aforementioned chart
and acknowledging that there is probably not any way to
determine if these were the same offenders, said it appears that
juveniles who commit a second offense go on to commit a third
offense. And with this in mind, she again suggested that the
referral to the JJS come at the second offense, rather than
waiting until the third.
MR. BUTTCANE explained that [the DHSS] has been able to take the
data for court convictions of minor consuming alcohol and
separate out individual youth without duplicating the count. In
the total time period from 1995 to 2000, there were 11,000
individuals who were 18 or older on January 1, 2001. Of those,
7,800 had one minor consuming alcohol offense within that five-
year period. Within that five-year period, 1,744 of the 7,800
had a second offense, and 1,427 had a third offense. These
figures illustrate that there is just a little bit of a
reduction between second-time and third-time offenders; the rate
of recidivism is quite high within this group of 18- through 20-
year-olds.
REPRESENTATIVE JAMES stated that Mr. Buttcane was making her
point.
MR. BUTTCANE brought up the point that the statistics show a
different picture for those offenders under 18 years old. In
this same five-year period, 1,749 kids were 17 or under as of
January 1, 2001.
TAPE 01-50, SIDE B
Number 2499
MR. BUTTCANE continued by saying that amongst this 17-and-under
age group within this five-year period, there were 1,388 first-
time offenders; of these offenders, only 200 committed a second
offense, and only 145 committed a third offense. He noted that
when looking at this delinquency population, 145 is a
significant decrease from 1,388.
REPRESENTATIVE JAMES countered that the older a person gets, the
more exposure there is to alcohol, and thus the greater the
likelihood of getting caught.
MR. BUTTCANE argued, however, that what is missing here is the
requirement to start addressing an alcohol dependency, which is
what the whole scheme in HB 179 does: it increases treatment
capacity for underage drinking, not just for 17-year-olds, but
also for the 19- and 20-year-olds, so that, hopefully, the kids
start getting treatment earlier, which is the role that JASAP
plays.
REPRESENTATIVE JAMES noted that her concern is not with regard
to the JASAP; it is, instead, with waiting until the third
offense to get serious.
MR. BUTTCANE remarked that there is no need to resort to the
most expensive processes any sooner than is really necessary,
given the circumstances. If second-time offenders are sent
through the JJS, the need for more juvenile probation officers
and associated costs increases, as opposed to a JASAP person who
will still be able to sort some of the kids out without
resorting to the "sledge hammer" to solve their problems. This
is why the JJS is being reserved for the third offense; these
kids really are demonstrating dependency issues - they need
serious intervention - and the JJS can help with the associated
problems such as dysfunctional families and educational issues.
Number 2410
REPRESENTATIVE JAMES, with regard to the younger offenders,
remarked that she was not convinced it is so much a dependency
problem rather than a behavior problem.
CHAIR ROKEBERG agreed with Representative James, and said his
belief that the majority of offenders do not have a dependency
problem is the primary reason he is reluctant to have first- and
second-time offenders receive treatment. He did, however,
acknowledge that there are some offenders who do have dependency
problems, and it is, therefore, important to identify those kids
and intervene with treatment.
MR. BUTTCANE cautioned against losing sight of the fact that out
of [1,388] kids, 145 of them continue to drink in a manner far
different from the drinking behavior of an ordinary kid.
MR. JONES, on the point of whether the JASAP screening would
"pick up" on that type of offender, said that a requirement of
screening is to look at an offender's history - to interview the
offender and his/her parents - and, therefore, that type of
determination could be made. He reminded the committee that the
JASAP would not involve treatment, and that most first-time
offenders would not go to treatment; they would simply attend
AIS, which in most instances will be sufficient. Only a few
first-time offenders would need further review.
CHAIR ROKEBERG remarked that while that may be the case, he did
not think it was money well spent in terms of "what we would
pick up there." He agreed that there should be an education
component for first-time offenders, but he said he is concerned
about spending the money on formal screening and evaluation for
the first offense.
Number 2272
ERNIE TURNER, Director, Division of Alcoholism & Drug Abuse,
Department of Health & Social Services (DHSS), said that he
really liked the concept of graduated sanctions. The "Use It,
Lose It" law applied to adolescents in the urban areas of the
state, but most of the kids in rural Alaska could not have cared
less whether they lost their licenses. He did note, however,
that when some of the youth moved from the rural areas to
Fairbanks to attend college, they participated in the Fairbanks
Alcohol Safety Action Program (FASAP) minor consuming/possession
pilot program in order to get their licenses back.
MR. TURNER relayed that the number of adolescents who get caught
is far fewer than the number who are actually using [alcohol
and/or other substances]. Surveys show that there up to 55
percent of adolescents between the ages of 12 and 15 are using
alcohol and/or other substances. So, while the discussion today
centers around the adolescents who are caught, it is not the
true number, he added. National statistics show that there are
1.1 million adolescents between the ages of 12 and 15 who have
been assessed as being dependent on alcohol and/or other
substances. He said he is excited about HB 179 because the
sooner "we get to them, the easier it is to treat them." He
noted that there are statistics that show if a person can be
delayed or prevented from drinking until the age of 21, as
compared with someone starting at the age of 14, there is a 75
percent greater chance that this person won't become dependent
on alcohol.
CHAIR ROKEBERG said that he agreed with Mr. Turner's remarks,
but he reiterated his concerns about the effectiveness and costs
of instituting a JASAP for first-time offenders. He again said
that he was in favor of mandating alcohol education for first-
time offenders, however.
MR. TURNER reminded the committee that the cost of the alcohol
information school (AIS) will be paid for by the client (or
client's family), so the only additional cost will be that which
is generated by clients who are referred to the JASAP.
CHAIR ROKEBERG remarked that the fiscal note for the pilot JASAP
proposed in HB 179 is $1.5 million.
Number 2079
REPRESENTATIVE MEYER remarked that even if some of the lower
fines don't have any impact on the kids, any funds received via
those fines could go towards offsetting the fiscal note and
could help fund the various programs being discussed. He
mentioned that he disagreed in some ways with Chair Rokeberg
with regard to [the effectiveness of] treatment and education
[for first-time offenders]. He relayed that during his
adolescence in Nebraska, the penalties for a first offense were
a joke, and the only thing anybody learned was to be more
careful the next time so as not to get caught. He opined that
had the eight-hour AIS been a requirement back when he was
growing up, it would have deterred some people from continuing
to drink. As it was, the only thing that had any deterrent
effect was for an offender to have his/her name listed in the
paper, which has since been ruled unconstitutional. He
suggested that some sort of fine should be required for a first
offense.
CHAIR ROKEBERG clarified that he did support education and fines
for first-time offenders, but he again reiterated that he had
concerns about having the JASAP and mandated treatment for first
offenses, and even for second offenses, for that matter.
REPRESENTATIVE JAMES said that what she found to be missing in
this issue is parental involvement. She said that she did not
feel that "we" as a government or "we" as a society are totally
responsible for these kids. There will never be enough money,
programs, or people working in this field to solve these youth-
related alcohol/substance-abuse problems. She stressed that the
parents must become involved in this issue, and that the onus
should be placed on them to "make this happen."
CHAIR ROKEBERG commented that taking an offender's PFD would
certainly get the parents involved. He noted that there was a
forthcoming amendment that would take into consideration the
financial resources of the defendant's parents when determining
eligibility for court-appointed counsel.
REPRESENTATIVE COGHILL added that language in Amendment 1 [as
well as in HB 179] mandates parental involvement with regard to
an informal adjustment.
Number 1931
REPRESENTATIVE JAMES emphasized that she was not opposed to
taking a person's PFD to pay an established debt, but she was
not in favor of taking a person's PFD simply as a punitive
measure.
MR. TURNER noted that a large portion of clients between the
ages of 18 and 21 use the PFD to pay for their outpatient
treatment; they assign their PFD directly to the agency.
CHAIR ROKEBERG, with regard to the costs incurred by the
offender, remarked that if there is a JASAP instituted, there is
a JASAP fee; there is a fee for the AIS; there is a fee for
treatment; and then there are also fines. And on the issue of
confiscating the PFD, he noted there is still the question of
whether this money would go directly towards reimbursing these
programs or would go directly into the general fund (GF).
REPRESENTATIVE BERKOWITZ said since one of the goals with HB 179
is to create a didactic affect, if the legislature sends the
message, "If you drink, inappropriately, you lose your
dividend," that's a pretty profound statement. He surmised that
the courts will sort out the financial aspect so that fines will
be adjusted to offset costs, and the like. He suggested that
the message from the legislature should be clear: "We view the
dividend as semi-sacred, but we think the problems of drinking
are so profound in this state that we're willing to take
dividends as a deterrent against drinking."
REPRESENTATIVE JAMES asked where the money from confiscated
dividends goes, adding that she is not in favor of having this
money go to the GF.
MR. JONES explained that currently, when people are not eligible
for a PFD due to being incarcerated as a felon [or a third-time
offender] during the eligibility year, the Department of
Corrections (DOC) notifies the Department of Revenue (DOR), and
that money is placed in a pool; that money can then be used by
the DOL and the Department of Public Safety (DPS) for specific
programs. However, alcohol-and-drug-abuse-treatment programs
are not included as programs for which that pool can be used.
REPRESENTATIVE JAMES commented that there should be a nexus
between confiscating the PFD and paying for [treatment
programs]; the PFD should not just simply be confiscated and
placed into the GF.
CHAIR ROKEBERG mentioned that the process by which the pool is
allocated would have to be amended in order to channel those
funds specifically into treatment, and that runs the risk of
constitutionality problems.
Number 1709
CANDACE BROWER, Program Coordinator/Legislative Liaison, Office
of the Commissioner, Department of Corrections (DOC), on the
topics of SB 105 and confiscation of an offender's PFD, said
that SB 105 proposes to expand the pool of PFD-withholding to
include misdemeanant offenders who have a prior felony
conviction. According to her understanding, that money goes
into a pool, which goes into the GF, and then at the end of the
budgetary year, that money is allocated to "crime victims'
compensation," the Council on Domestic Violence and Sexual
Assault (CDVSA), and some DOC programs.
CHAIR ROKEBERG then surmised that should the pool allocation be
amended via SB 105, and should either HB 179 or HB 4 include a
PFD confiscation provision, the accompanying fiscal notes would
then reflect incoming revenue to the GF. But he also
acknowledged that the nexus would then be lost, and thus there
would be no guarantee that those funds would go toward the
(J)ASAP, education, and treatment fees. For this reason, he
suggested that it would be better to leave decisions regarding
[fines, fees, and fund sources] to the discretion of the courts.
He also suggested that the legislature should simply keep these
issues in mind when setting the levels of the fines.
REPRESENTATIVE BERKOWITZ said he understood the argument that
money and PFDs are fungible, but there is a very different
message relayed by saying "we're" taking "your" dividend.
People think of fines as just money, while taking a PFD has a
more profound meaning, he added, and even with youth who do not
normally see their dividends, their parents will help "bring the
gavel down upon the kids."
MS. BROWER, with regard to the PFD, offered that what happens in
rural Alaska, as opposed to urban Alaska, is very different
because a lot of families in Bush Alaska are dependent on PFDs
for heat and survival; there are not a lot of jobs in the rural
areas and money is not flowing heavily. Another issue she
brought up is that of grandchildren being raised by elders who
may not be able to control those kids. And although she
acknowledged that intervention, treatment, and education can be
helpful in those situations, she did not know that taking a
person's dividend away would fix the problem.
REPRESENTATIVE BERKOWITZ argued that the legislature is
operating under the premise that they are deterring a number of
people from drinking, and that they are helping people get their
lives in order. In essence, he suggested that what the
legislature is saying is that if they are successful in
deterring people from drinking, those people are making a down
payment with one or two years' worth of dividends in order to
save themselves from the costs of a lifetime of drinking;
notwithstanding the differences between urban and rural Alaska,
in the long run he suggested that those people will come out
ahead, fiscally.
Number 1433
ALVIA "STEVE" DUNNAGAN, Lieutenant, Division of Alaska State
Troopers, Department of Public Safety (DPS), testified via
teleconference and said that the DPS has submitted a zero fiscal
note and a bill analysis in support of HB 179. He acknowledged
that the "Use It, Lose It" law was effective for a time, but
from an enforcement standpoint, the effects began to wear off
over time and kids began to drink and have parties again. He
posited that HB 179, as currently drafted with the "stair-step"
penalties, is probably the best way at this point to approach
the problem [of underage drinking]. He added that from an
enforcement standpoint, HB 179 will not affect the DPS; the DPS
hopes that some measure encompassed in HB 179 will take effect
and deter underage drinking.
LIEUTENANT DUNNAGAN went on to say that he thinks the "stair-
step" and the larger fines will act as deterrents, especially
if, upon passage, there is information put out to the public
detailing the state's new position on minor consumption. He
added that he thinks these provisions will have more of an
effect on parents than "Use It, Lose It" did because, he
surmised, some parents viewed the loss of an adolescent's
driver's license as an answer to a prayer, particularly since it
was the result of the state's mandate rather than their own
mandate. He also surmised that the CWS provision will act as a
deterrent since "kids out there have a lot better things to do,
according to them, than help out in their communities."
Number 1296
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration, testified via
teleconference and said that although [the PDA] has not really
had an opportunity to try treatment through the [F]ASAP,
previous testimony was encouraging. He agreed with Mr. Buttcane
with regard to deterrence; having to spend a Saturday at an
alcohol education class and having to go through assessments and
screening processes is something that gets the attention of
younger people and also helps prevent early-onset alcohol
dependence, which is a tremendous problem. He surmised that the
increase in youthful offenders is not so much because "Use It,
Lose It" hasn't worked, but because the concept of community
policing has become more prominent and enforcement has
increased.
MR. McCUNE, on the point of [mandated] CWS requiring jury trials
and public defenders, said the Booth case is cited, and
accounted for, in [the PDA's] fiscal note. He also said that
[the PDA] believes in the "clean slate" concept discussed by Mr.
Guaneli, and, therefore, third-time offenders are not accounted
for in the fiscal note for the first period of time that HB 179
would be in effect, should it pass. To explain [the PDA's]
belief in the clean slate concept, Mr. McCune stated that one
clear way to collaterally attack a prior conviction, in the
context of a current case, is if the prior conviction was an
"uncounseled" conviction (Gideon v. Wainwright) whereby the
offender did not have the right to an attorney or was not
advised of that right. He added that most of the prior
convictions [the PDA] deals with are criminal convictions; he
does know of any current state law that says a prior violation
can be used as an element to enhance a misdemeanor offense. He
noted that a first offense under HB 179 would be an uncounseled
case; although it is only a violation and as such does not
really carry a right to counsel, it is still an element of the
misdemeanor offense. This adds a level of complexity to the
situation, and there might be some legal challenges to using
violations as elements to enhance a misdemeanor, he suggested.
MR. McCUNE said the PDA thinks that a program such as the JASAP
would be effective and would work better than putting kids
through the misdemeanor-type criminal process. On the issue of
parental involvement, he referred to AS 47.12.030(b) and said
that this is the provision currently in HB 179 regarding the
third offense. When a child under 18 commits an offense such as
a traffic offense, a fish and game offense, or a Title 4 minor
in possession offense - which are not covered by the [statutes
regarding] juvenile offenses - the statutes say that the minor's
parent, guardian, or legal custodian shall be present at all
proceedings. Thus, currently, the parents are legally required
to be in court with a child who is charged with minor consuming.
Number 0905
MR. McCUNE, on the topic of fines, noted that an old law -
stemming from a 1972 case (City of Fairbanks v. Baker) - said
that if more than a $300 fine is going to be imposed, it
triggers the right to a jury trial and court-appointed counsel
for those who cannot afford their own counsel. [The PDA]
believes that because of inflation and so on, the courts would
not object if higher types of fines - in the range of $600 to
$1,000 - were imposed. [The PDA] also believes that the
approach to take is to make the JASAP mandatory, to couple that
with ensuring that the courts have the ability to put fines on
these violations, and to keep these offenses at the violation
level.
MR. McCUNE, in response to questions, said that if the provision
mandating CWS for a first offense is removed from HB 179, the
PDA's fiscal note would be reduced, although he was not yet sure
by how much. He mentioned that he had been very conservative in
calculating the PDA's current fiscal note: he had estimated
that [only 30 percent] of the total number of projected first-
time offenders would request the PDA's services in response to
the mandated CWS.
CHAIR ROKEBERG alluded to perhaps removing CWS for a first
offense in an attempt to lower the fiscal note.
MR. GUANELI, on the topic of using violations to enhance
misdemeanors, said that the idea of wiping the slate clean
applies to offenses that were committed before the effective
date of HB 179, but, he added, there is still the problem of how
to stair-step from first offense to second offense to third
offense. He explained that [the DOL] has determined that there
is a way to overcome this problem resulting from wiping the
slate clean, and he used the example of a crime called violating
a domestic violence restraining order. When a person has a
domestic violence restraining order issued against him or her,
that person is given the status of domestic violence offender,
even if he/she is not convicted of any crime, since the
restraining order was probably entered based on a preponderance-
of-evidence standard or might have even been an ex parte
[proceeding]. Hence, when the offender violates the terms of
that order, he/she then becomes guilty of the crime of violating
a domestic violence restraining order.
Number 0524
MR. GUANELI opined that if people who are convicted of violating
provisions of HB 179 are given a certain status, they can then
be considered status offenders for subsequent offenses. He
envisioned it working thus: When a person commits a first
offense and is then put on probation, and if a second offense is
committed while on probation for the first, that person is then
placed in the second-time offender category. In this way, [the
DOL] believes that even if the first offense did not come with a
right to a jury trial or right to counsel, as long as the
offender is on probation for that offense - and has the status
of probationer - then any further offense will place the
offender in the higher offense category. He suggested this is a
viable way to get around current Alaska case law.
MR. GUANELI recommended further that a way to instill the idea
that offenders may not drink until they become 21 is to place
offenders on open-court, unsupervised, informal probation until
they are 21. Then, when the offender reaches the age of 21,
he/she is off probation. However, if the offender drinks again
before getting off probation, then he/she is committing the
crime of minor consuming while on probation for a prior offense,
and hence is treated as a second-time offender as previously
outlined. This method, he suggested, has the advantages of
allowing "stair-stepping"; it tells the minor that he/she is in
this status until the age of 21; and it allows the $600 fine for
a first offense to be suspended. [The DOL] recommends the $600
fine be suspended as a way to encourage the offender to pay for
the JASAP or education program, and also to hold something over
the offender's head until he/she reaches the age of 21; if
another offense is committed before then, the $600 will have to
be paid, in addition to any fines imposed for the subsequent
offense.
REPRESENTATIVE BERKOWITZ opined that perhaps [the DOL] had not
gone far enough with this idea. He recommended that rather than
having the first offense be a violation - using the DV-order
analogy - [the offender] could be subject to a court order for
the first offense. In this way, any subsequent offense would be
considered the first offense but it would be the offense of
violating a "no drinking" (ND) order. If the analogy with the
DV-order is an appropriate analogy, he continued, then an
underage individual caught drinking could be brought before a
judge who would issue, in essence, a ND order that would also
include things like a JASAP assessment and compliance with that
assessment. Failure to comply with the JASAP assessment or
failure to not drink would then subject the juvenile to the
criminal penalties associated with what is currently being
termed the second offense. He surmised that in this way, if it
is true that nearly 70 percent of first-time offenders do not
re-offend after the first court contact, then the need for the
first proceeding to be criminal can be eliminated, and it would
still allow what is now considered the second offense, "to fit
in."
Number 0155
MR. GUANELI, in response to this suggestion, said it would work
with the exception of imposing a fine; thus the additional
incentive of the fine, as proposed via Amendment 1, drops out.
He opined that it is important to provide some form of monetary
incentive to minors who are going to be told that they have to
pay for their alcohol screening and education. For example,
"You either pay $100 to go to this class or you pay $600 to the
judge," he said. Even 15-year-olds can understand the economics
of this choice, he surmised, and thus will opt for the AIS. He
expressed reluctance to lose that incentive via Representative
Berkowitz's suggestion. He then reminded the committee that the
current fine for a first offense is up to $300, but current
practice seems to be to impose a fine of $50 or $75.
CHAIR ROKEBERG called this current practice a "hand slap," which
is not catching "their" attention.
REPRESENTATIVE BERKOWITZ suggested that any additional moneys
could be made up by assessing court costs.
MR. GUANELI commented that he would have to think further on
that aspect of the suggestion.
TAPE 01-51, SIDE A
Number 0001
REPRESENTATIVE BERKOWITZ said he did not think [that his
suggestion] would trespass on the same constitutional ground as
"stair-stepping," which he sees as being extremely problematic;
if there is a second offense, then the juvenile would be subject
to a violation of a court order, as well as whatever happens
with the second offense. And with that violation of a court
order, some other penalties do attach in the same way that
penalties attach for violations of a DV order.
CHAIR ROKEBERG, in summary, noted that Amendment 1 was what the
administration had originally recommended as HB 179, but this
was changed to reflect an increase in fines and CWS, and a
lowering of some of the treatment elements. Since then,
information was brought forward indicating that mandatory CWS
would still trigger a requirement for a jury trial and for
counsel. He added, however, that if the CWS is simply given as
an option by the judge, a jury trial and counsel would not be
required even if CWS is what the offender opted for. He also
noted that Mr. Wooliver [of the Alaska Court System] had
estimated that 1 percent of misdemeanant offenders would go to
trial, and that another study had an estimate of 3.7 percent.
MR. McCUNE clarified that [the PDA] has to do more work on its
cases regardless of whether the cases go to trial; [the PDA] has
to meet with the defendant and discuss the case, and generally
also has to meet with family members who are understandably
upset. Therefore, unlike other state agencies and the court
system, [the PDA] does not make fiscal calculations based on the
number of trials; instead, it bases its calculations on the
number of cases.
CHAIR ROKEBERG suggested that the committee develop a committee
substitute - via the adoption today of Amendment 1 and any other
amendments currently available to the committee - with the
intention of bringing it back before the committee for further
review and possibly further amendments.
Number 0425
REPRESENTATIVE COGHILL made a motion to adopt Amendment 1.
[Amendment 1 is provided with original punctuation at the end of
the minutes on HB 179.] There being no objections, Amendment 1
was adopted.
Number 0445
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 2,
which "removes the screening and treatment from the first
offense, but leaves the education as a mandate."
Number 0475
REPRESENTATIVE BERKOWITZ objected.
Number 0485
ELMER LINDSTROM, Special Assistant, Office of the Commissioner,
Department of Health and Social Services (DHSS), suggested that
there is still a misunderstanding on this point. He pointed out
that [the DHSS] has a series of three fiscal notes, with the
largest one reflecting the treatment element. He assured the
committee that not one penny of those treatment dollars is
associated with the first-time offender; the first-time offender
will receive nothing but a referral to an AIS.
CHAIR ROKEBERG warned that this is not a sufficient argument
against Conceptual Amendment 2. He clarified that his intention
is to provide for mandatory education while deleting the ASAP
provision for first-time offenders.
REPRESENTATIVE BERKOWITZ commented that for most offenders who
get caught up in the system, once is enough; they get the point.
He argued that the assessment provision is critical in trying to
"put the net out to see who we're catching." He suggested that
about 10 percent of offenders - even the younger juveniles -
have some real [alcohol-related] problems; if those offenders
can be caught early, the state will be saving costs down the
road. He also suggested letting the House Finance Committee
worry about "the numbers," while the House Judiciary Standing
Committee focuses on creating the right policy.
CHAIR ROKEBERG commented that he thinks the AIS is essential for
first-time offenders because this, coupled with the fines, is
what will get the kid's attention. He expressed the concern,
however, that people who go through the ASAP will be assessed as
needing treatment even after "they have one Budweiser."
MR. LINDSTROM explained that for the person just described, the
ASAP will only be determining whether the AIS is the most
appropriate course of action, and then reporting back to court
whether this step was taken by the offender.
CHAIR ROKEBERG stated, "We don't need that bureaucrat in that
transaction."
MR. LINDSTROM reminded the committee that if the clean-slate
concept is instituted, then, for a period of time, a significant
number of people coming in as first-time offenders might really
be second-, third-, fifth-, tenth-, or twelfth-time offenders;
as such, through a formal screening process, they may well be
assessed as needing some form of treatment. He suggested that
is a significant hole in the first-time-offender scheme. He
also suggested that there is still a misperception regarding the
role of the JASAP.
Number 0732
REPRESENTATIVE MEYER pointed out that according to the chart
detailing the administration's proposal, offenders will have to
pay for screening and any education or treatment. He surmised
that if this is the case, there is no additional cost.
CHAIR ROKEBERG remarked that for those who cannot afford it, the
costs of screening and education/treatment will be picked up by
the state.
REPRESENTATIVE MEYER suggested that if a fine is reinstated for
a first offense, in the long run "it'll be a wash." He added
that he did not think a $300 fine would require a jury trial.
MR. BUTTCANE, as an argument in favor of screening for first-
time offenders, posed a scenario in which 1,300 adolescents are
asked, "Do you black out when you drink?" While all but 145
will say "No," those 145 are more likely to respond, "Well, yes,
doesn't everyone?" Hence, during screening, specific groups of
kids will be found that have the disease [of alcoholism] - they
drink differently and they respond differently to the chemical
substance alcohol, even with the first drink. Accordingly, the
appropriate assessment can be performed at an early stage so
that perhaps the second offense can be avoided altogether. He
opined that great savings occur "down the road" by helping these
kids who have this "allergy" to alcohol, this
biological/physiological difference, get into treatment at the
first offense.
CHAIR ROKEBERG suggested that the fee for the JASAP should be
raised to a minimum of $150.
MR. JONES noted that this increase could be done via regulation.
He estimated that for those people who show up in publicly
funded programs, the collection rate for the ASAP fees would
probably remain at approximately 40-45 percent.
REPRESENTATIVE BERKOWITZ, with regard to the question of whether
to institute a minimum fine for a first offense, said that he
would like to explore other alternatives because he considers
the "stair-step" to be incredibly problematic from a
constitutional perspective. He again suggested instituting a
system using a "no drinking" order, similar to a DV order,
whereby all the penalties would attach upon violation of that
order.
CHAIR ROKEBERG, on additional points to consider, asked the
committee to decide whether to institute a JASAP pilot program.
REPRESENTATIVE BERKOWITZ also suggested that more research
should be done with regard to the consequences of taking a
person's PFD.
CHAIR ROKEBERG noted that he would consider the suggestion of
taking a person's PFD at the third offense if the amount didn't
exceed the class-A-misdemeanor parameters. He recommended that
Representative Berkowitz's research should include a look at how
to "get past the pooling effect of the GF."
REPRESENTATIVE BERKOWITZ, on the point of whether to adopt
Conceptual Amendment 2, which would remove the screening and
treatment for a first offense but still mandate education,
maintained his objection.
Number 1275
A roll call vote was taken. Representatives Coghill, James, and
Rokeberg voted for Conceptual Amendment 2. Representatives
Meyer and Berkowitz voted against it. Therefore, Conceptual
Amendment 2 passed by a vote of 3-2.
Number 1287
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 3,
which read [original punctuation provided]:
Add a new subsection to AS 04.16.050 stating:
When considering the financial resources of a minor
for purposes of determining the eligibility for court-
appointed counsel, the court shall consider the
resources of both the defendant and the defendant's
parents, unless the court finds good cause to treat
their resources as being unavailable to the defendant.
CHAIR ROKEBERG added that this concept is already part of the
district court rules. He asked whether there were objections to
Conceptual Amendment 3. There being no objection, Conceptual
Amendment 3 was adopted.
[HB 179 was held over.]
AMENDMENTS
The following amendment to HB 179 was discussed and adopted
during the hearing. [Shorter amendments are provided in the
main text only.]
Amendment 1 (adopted) [original punctuation provided]:
Delete Section 1 and replace with:
*Section 1. AS 04.16.050(b) is amended to read:
(b) A person who violates (a) of this section and
who has not been previously convicted is guilty of
minor consuming or in possession or control [A
VIOLATION]. Upon conviction in the district court,
the court shall [MAY] impose a fine of $600 [NOT LESS
THAN $100]. The court shall suspend the full amount
of the fine, and place the person on probation under
(e) of this section.
Delete Section 2 and replace with:
*Sec. 2. AS 04.16.050 is amended by adding new
subsections to read:
(c) A person is guilty of repeat minor consuming
or in possession or control if the person is on
probation under (b) of this section or has been
previously convicted, and the person violates (a) of
this section. Upon conviction in the district court,
the court shall impose a fine of $1000 and at least 48
hours of community work service. The court shall
suspend a portion of the fine up to $500, and place
the person on probation under (e) of this section.
(d) A person is guilty of habitual minor
consuming or in possession or control if the person is
on probation under (c) of this section or this
subsection, or has been twice previously convicted,
and the person violates (a) of this section. Habitual
minor consuming or in possession or control is a class
B misdemeanor. Upon conviction, the court may impose
an appropriate period of imprisonment and fine and
place the person on probation under (e) of this
section, and shall
(1) impose at least 96 hours of community
work service;
(2) revoke the person's privilege to drive
for six months, and by the end of the next business
day shall notify the division of motor vehicles of the
revocation; and
(3) take possession of any driver's license
or permit.
(e) A person sentenced under (b), (c) or (d) of
this section shall be placed on probation for one
year, or until the person turns 21, whichever is
later. The conditions of probation are:
(1) that the person pay for and enroll in a
juvenile alcohol safety action program;
(2) that the person pay for and successfully
complete any education or treatment recommended;
(3) that the person not consume inhalants,
or possess or consume controlled substances or
alcoholic beverages, except as provided in AS
04.16.051(b);
(4) that the person timely complete any
community work service ordered, as provided in (f) of
this section; and
(5) any other condition the court considers
appropriate.
(f) Community work service ordered under this
section must be performed within 120 days of the entry
of judgment for a conviction. The court may expand
the time period for up to 30 days upon a showing of
good cause. The person shall submit verification of
completion of community work service to the clerk of
court on a form provided by the court. If the
verification is not provided within the time period
required by this subsection, within 30 days the court
shall schedule further proceedings in the case to
determine whether a violation of probation has
occurred.
(g) The treatment recommended by a juvenile
alcohol safety action program under (b), (c) or (d) of
this section may include a period of inpatient
treatment if the judgment specifies the maximum period
of inpatient treatment authorized. A person who has
been recommended for inpatient treatment may make a
written request to the sentencing court for review of
the referral. The request for review shall be made
within seven days of the recommendation, and shall
specifically set out the grounds upon which the
request for review is based. The court may order a
hearing on the request for review.
(h) The juvenile alcohol safety action program
to which a person is referred under this section shall
inform the court or a minor's juvenile probation
officer if the person fails to submit to evaluation or
fails to successfully complete any education or
treatment recommended. If the court finds that the
person has failed to perform community work service as
ordered, or has failed to submit to evaluation or
successfully complete the education or treatment
recommended, the court shall impose the suspended fine
and may impose any period of suspended incarceration.
If the person was convicted of repeat minor consuming
or in possession under (c) of this section, the court
shall also revoke the person's privilege to drive for
six months, and shall take possession of any driver's
license or permit. If the person was convicted of
habitual minor consuming or in possession under (d) of
this section, the sentencing court or juvenile court
shall revoke the person's privilege to drive for an
additional six months beyond the revocation under (d)
of this section. A court revoking the privilege to
drive under this subsection shall notify the division
of motor vehicles.
(i) In this section,
(1) "juvenile alcohol safety action
program," means
(A) a juvenile alcohol safety action
program developed and implemented or approved by the
Department of Health and Social Services under AS
47.37;
(B) any other alcohol education or
treatment program approved by the Department of Health
and Social Services under AS 47.37, if a program
described in AS 04.16.050(g)(1) is not available in
the community in which the person resides; or
(C) a program or counseling approved by
the court, if a program or treatment described in AS
04.16.050(g)(1)(A) or (B) is not available in the
community where the person resides;
(2) "previously convicted" means a
conviction or an adjudication as a delinquent for a
violation of AS 28.35.030, 28.35.032, AS 28.35.280 --
28.35.290, AS 11.71, or a law or ordinance in another
jurisdiction with substantially similar elements;
(3) "privilege to drive" means a driver's
license license [sic] or permit, or privilege to
obtain a driver's license or permit.
Delete Section 4 and replace with:
* Sec. 4. AS 28.15 is amended by adding a new
section to read:
Sec. 28.15.176. Administrative revocation for
minors who consume or possess alcohol or drugs. (a)
The department shall revoke the privilege to drive of
a minor for
(1) six months, when notified of an informal
adjustment under AS 47.12.060(b)(4), and shall revoke
the minor's privilege to drive for an additional six
months when notified of an unsuccessful adjustment
under that statute;
(2)the time period specified in AS
28.15.185(b), when notified of an informal adjustment
under AS 47.12.060(b)(5).
(b) The department may not issue a new license or
reissue a license to a person whose privilege to drive
has been revoked under AS 04.16.050, AS 28.15.183 or
AS 28.15.185 unless the person has enrolled in a
juvenile alcohol safety action program and
successfully completed any education or treatment
recommended.
(c) A revocation under AS 04.16.050 is
consecutive to a revocation imposed under another
provision of law, but is concurrent with a revocation
under that statute based on a prior conviction,
adjudication of delinquency or informal adjustment
under AS 47.12.060.
(d) Notwithstanding the provisions of AS
28.20.240 and 28.20.250, the department may not
require proof of financial responsibility before
restoring a person's privilege to drive under this
section.
(e) In this section,
(1) "juvenile alcohol safety action
program," has the meaning given in AS 04.16.050;
(2) "privilege to drive" has the meaning
given in AS 04.16.050;
Delete Section 5 and replace with:
*Sec. 5. AS 28.15.181 is amended by adding a new
subsection to read:
(i) A court convicting a person under AS
04.16.050(c) or (d) shall revoke the person's
privilege to drive as provided in AS 04.16.050. As
used in this subsection, "privilege to drive" has the
meaning given in AS 04.16.050.
Add a new Section:
*Sec. ___. AS 28.15.183(g) is amended to read:
(g) Except as provided under (h) of this section,
the department may not issue a new license or reissue
a license to a person whose driver's license, permit,
or privilege to drive has been revoked under this
section unless the person has enrolled in a juvenile
alcohol safety action program, as defined in AS
04.16.050, and successfully completed any education or
treatment recommended [IS ENROLLED IN AND IS IN
COMPLIANCE WITH, OR HAS SUCCESSFULLY COMPLETED,
(1) AN ALCOHOLISM EDUCATION OR
REHABILITATION TREATMENT PROGRAM APPROVED UNDER AS
47.37, IF THE REVOCATION RESULTED FROM POSSESSION OR
CONSUMPTION OF ALCOHOL IN VIOLATION OF AS 04.16.050 OR
A MUNICIPAL ORDINANCE WITH SUBSTANTIALLY SIMILAR
ELEMENTS, FROM] OPERATING A VEHICLE AFTER CONSUMING
ALCOHOL IN VIOLATION OF AS 28.35.280, OR FROM REFUSAL
TO SUBMIT TO A CHEMICAL TEST OF BREATH IN VIOLATION OF
AS 28.35.285; OR
(2) A DRUG EDUCATION OR REHABILITATION
TREATMENT PROGRAM, IF THE REVOCATION RESULTED FROM
POSSESSION OR USE OF A CONTROLLED SUBSTANCE IN
VIOLATION OF AS 11.71 OR A MUNICIPAL ORDINANCE WITH
SUBSTANTIALLY SIMILAR ELEMENTS].
Delete Section 13 and replace with
*Sec. 13. AS 47.12.060(b) is amended to read:
(b) When the department or an entity selected by
it decides to make an informal adjustment of a matter
under (a)(2) of this section, that informal adjustment
(1) must be made with [MAY NOT BE MADE
WITHOUT] the agreement or consent of the minor and the
minor's parents or guardian to the terms and
conditions of the adjustment;[.]
(2) must give [IN ADDITION, THE DEPARTMENT
OR ENTITY SHALL GIVE] the minor's foster parents an
opportunity to be heard before the informal adjustment
is made;[.]
(3) must include notice that [AN] informal
action to adjust a matter is not successfully
completed unless, among other factors that the
department or entity selected by it considers, as to
the victim of the act of the minor that is the basis
of the delinquency allegation, the minor pays
restitution in the amount set by the department or the
entity selected by it or agrees as a term or condition
set by the department or the entity selected by it to
pay the restitution;
(4) for a violation of habitual minor
consuming or in possession under AS 04.16.050(d), must
include an agreement that the minor perform 96 hours
of community work service and that the minor's
privilege to drive be revoked for six months, as if
the minor had been adjudicated delinquent, and that
the privilege to drive be revoked for an additional
six months if the informal adjustment is not
successful because the minor has failed to perform
community work service as ordered, or has failed to
submit to evaluation or successfully complete the
education or treatment recommended. The department or
entity selected by it shall notify the division of
motor vehicles of an informal adjustment under this
paragraph, and of an unsuccessful adjustment described
in this paragraph;
(5) of an offense described in AS
28.15.185(a) must include an agreement that the
minor's privilege to drive be revoked as provided in
AS 28.15.185(b), as if the minor had been adjudicated
delinquent. The department or entity selected by it
shall notify the division of motor vehicles of an
informal adjustment under this paragraph.
Add a new section:
*Sec. ___. AS 47.37.040 is amended by adding a new
paragraphs to read:
(20) develop and implement or designate, in
cooperation with other state or local agencies, a
juvenile alcohol safety action program that provides
alcohol and substance abuse screening, referral, and
monitoring of persons under 21 years of age who have
been referred to it by a court in connection with a
charge or conviction of a violation or misdemeanor
related to the use of alcohol or a controlled
substance, by the division of motor vehicles in
connection with a license action related to the use of
alcohol or a controlled substance, or the division of
juvenile justice after a delinquency adjudication that
is related to the use of alcohol or a controlled
substance.
[End of Amendment 1 to HB 179; HB 179 was held over.]
HB 4 - OMNIBUS DRUNK DRIVING AMENDMENTS
Number 1376
CHAIR ROKEBERG announced that the committee would resume the
hearing on 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 were CSHB 4(TRA) and Amendment 16A, as amended
once.]
[Because of their length, some amendments to CSHB 4(TRA)
discussed or adopted during the meeting are found at the end of
this final section of minutes for this date for HB 4. Shorter
amendments are included in the main text only.]
REPRESENTATIVE BERKOWITZ referring to page 6 of [Amendment 16A],
asked why ten days of community work service (CWS) was only
being allowed for the second offense. [Amendment 16A is
provided at the end of the minutes for HB 4.]
Number 1450
MIKE FORD, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency, said
that this language in the refusal section of [Amendment 16A] is
simply conforming to language in the DWI (drinking while
intoxicated) provisions on page 17 of CSHB 4(TRA). He confirmed
that essentially the mandatory minimum sentence for a second
offense is 20 days with 10 days of CWS.
CHAIR ROKEBERG added that the alternative is 30 days in jail if
the offender does not want to do the CWS.
REPRESENTATIVE BERKOWITZ commented that the defendant is not
usually allowed to make this choice for himself/herself.
CHAIR ROKEBERG surmised that the decision belonged to the court.
MR. FORD said he saw this as an option on the part of the person
receiving the sentence; he did not see that the court could deny
a person this option.
REPRESENTATIVE BERKOWITZ explained that the defendant is not
normally allowed to choose whether to serve jail time or
suspended time, and that the court could impose the 30 days'
jail time without any CWS, if it so chooses.
CHAIR ROKEBERG noted that this language was inserted during the
time when he was promoting the diversion program.
MR. FORD, acknowledging that this is a point that should be
clarified, restated that his interpretation of the language is
that the court is required to give the defendant the option.
REPRESENTATIVE BERKOWITZ remarked that if this is the case, then
he objects to this language.
CHAIR ROKEBERG said he agreed with Representative Berkowitz:
the language should reflect that this option is at the court's
discretion.
REPRESENTATIVE BERKOWITZ noted again that this language reflects
minimum sentences, and therefore the sentence could be increased
should the court so choose.
Number 1690
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), reminded the committee that the existing statute already
defines what constitutes CWS, and he suggested that any change
in language pertaining to CWS should reflect that it is pursuant
to this existing statute.
Number 1712
CHAIR ROKEBERG, momentarily setting aside the question of
[Amendment 16A], made a motion to adopt Conceptual Amendment
16B, "to conform the language in Section 41 [of Amendment 16A,
regarding AS 28.35.032, and Section 27 of CSHB 4(TRA), regarding
AS 28.35.030] as needed to conform the instruction that the
court be given the power to make that election." There being no
objection, Conceptual Amendment 16B was adopted.
REPRESENTATIVE BERKOWITZ, returning to Amendment 16A, noted that
he still had concerns about it.
Number 1739
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration, testified via
teleconference, and said that when the municipal attorney was
speaking about the Municipality of Anchorage's forfeiture
proceedings, it was with regard to "in rem" forfeitures instead
of "in personam" or "criminal" forfeitures. He noted that in
the Anchorage Municipal Code (AMC), there are two provisions
relating to vehicle forfeiture for DWI. The in personam
forfeitures are located in AMC 9.28.020, and the in rem
forfeitures are located in AMC 9.28.026. He explained that it
appears to him that the drafter of Amendment 16A took language
from AMC 9.28.020, instead of from AMC 9.28.026, which, he
roughly paraphrased, results in the vehicle being declared a
public nuisance in order that the vehicle can be forfeited. He
went on to suggest that by using language from AMC 9.28.020,
Amendment 16A would not decrease [the PDA's] fiscal note as
anticipated.
MR. McCUNE, on the point of whether he had any specific
solutions to the problems pertaining to vehicle forfeiture,
responded that the current vehicle forfeiture laws do allow for
some leeway, but he ventured that the specifics of this
information would be better garnered from Mr. Guaneli. He
suggested that perhaps civil forfeiture might be addressed in
statute already. However, he said that in his view, as
[Amendment 16A] is currently written, it is connected with a
criminal case and will result in an in personam criminal vehicle
forfeiture. He then referred to the first two sections of
Amendment 16 on page 1, and noted that much to his shock, a
person's liberty is dependent on whether he/she has the ability
to post the return bond. He surmised that this provision will
have big effects on both [the PDA] and the DOC. And while he
acknowledged that this language is part of the Anchorage
Municipal Code, he said he seriously doubts it is enforced. He
suggested that requiring a bond on the vehicle in order for the
person to be released from jail violates that person's
constitutional right to bail.
MR. FORD cautioned the committee that although he had attempted
to use the Anchorage system with regard to vehicle forfeiture,
he was not familiar with it in practice, and it may very well be
that Anchorage does not use some of its municipal provisions.
He also noted that the direction the committee was taking with
regard to vehicle impoundment and forfeiture was a major change
from current statutory practice; therefore, he urged caution.
CHAIR ROKEBERG remarked that it would be difficult to simply
suggest a conceptual amendment to alleviate some of these
aforementioned concerns relating to vehicle forfeiture. He
mentioned, however, that properly amending the provisions
regarding vehicle forfeiture has the potential of lowering the
fiscal note.
Number 2122
REPRESENTATIVE BERKOWITZ made a motion to adopt a conceptual
amendment to Amendment 16A, "that we withdraw all the forfeiture
provisions from [Amendment 16A]."
CHAIR ROKEBERG asked whether this amendment to Amendment 16A
would affect the impoundment provisions.
MR. FORD said that forfeiture and impoundment are the two major
parts to consider, and that they are two separate parts. He
added that if the committee wanted to retain the current system
with regard to vehicle forfeiture, then those references could
be removed. He noted that under the present system, forfeiture
is at the discretion of the courts, whereas impoundment is up to
the police and is typically a safety issue.
CHAIR ROKEBERG offered that they would be making a policy
statement, and he added that they had already made a policy
statement elsewhere in the bill that is simply being reconfirmed
by Amendment 16A - that vehicle forfeiture will be mandated for
the third, or higher, conviction, and, via another amendment,
that the courts will have the option of forfeiture or
impoundment on the second offense.
MR. FORD confirmed that there was an earlier amendment that did
accomplish this step regarding vehicle forfeiture.
CHAIR ROKEBERG clarified that he was referring to a forthcoming
amendment relating to forfeiture of a vehicle's license plates,
which he said he is calling "impoundment in place." He added
that he was willing to strip Amendment 16A down to its bare
essentials in the interest of moving the process along, but he
did not want to miss something by doing so.
REPRESENTATIVE BERKOWITZ said, "As I understand it, what we're
hanging on here are the impoundment and the forfeiture
provisions that are in [Amendment 16A]."
Number 2221
CHAIR ROKEBERG rephrased the amendment to Amendment 16A: "To
remove those sections that relate to the attempt that we're
making for civil-case forfeiture and impoundment only. Any
other provisions that relate to current state forfeiture and/or
the times of forfeiture and impoundment should remain in there,
if in fact they're even there."
Number 2250
JANET SEITZ, Staff to Representative Norman Rokeberg, Alaska
State Legislature, noted that this amendment to Amendment 16A
would leave all of the refusal language intact.
Number 2270
CHAIR ROKEBERG asked whether there were any objections to the
amendment to Amendment 16A [as previously amended once]. There
being no objection, the second amendment to Amendment 16A was
adopted.
REPRESENTATIVE BERKOWITZ referred to language in Section 42 of
Amendment 16A that says: "supply the judge, prosecutor,
defendant, and an agency involved in the defendant's treatment
with information and reports concerning the defendant's past and
present assessment, treatment, and progress". He then asked
whether this would be invading the patient's privileged
information. He suggested that some of this information might
be doctor-patient, or psychoanalyst-patient information. And
although he acknowledged that this information is confidential
and may only be used in court proceedings involving the
defendant or the defendant's treatment, he pointed out that
supplying this information is, essentially, widely broadcasting
what can be privileged information, without any provisions
protecting the individual's privacy rights.
MR. FORD pointed out that the language limits who can get the
information and what the information can be used for, and that
the information is confidential. He suggested that this should
provide some comfort level.
REPRESENTATIVE BERKOWITZ called this a big loophole and used the
following example:
I've got some guy who the doctors say is ... an
alcoholic and a kleptomaniac. ... I'm a prosecutor -
I have access to this information - and I could use
that in another court proceeding.
MR. GUANELI, in defense of this specific language - which was
suggested by the DOL - said that there are specific rules of
evidence that govern what evidence is admissible in court
proceedings, and one of the primary rules pertains to the
doctor-patient relationship. If prosecutors come into
possession of that type of information, they simply cannot use
it. He explained that this information is necessary to guide
the defendant's further treatment; the treatment professionals
say that they sometimes have trouble getting full access to all
of the defendant's prior treatment records, and they need a
statute that will allow them to gather this information.
REPRESENTATIVE BERKOWITZ related another example in which
information was disseminated more widely than it should have
been: an individual was HIV (human immunodeficiency virus)
positive - falsely, it turned out - and it became a problem for
this individual in his community.
Number 2429
MR. GUANELI suggested striking "the defendant or" from page 8,
lines 19-20, of Amendment 16A, resulting in the information's
only being used in a court proceeding involving the defendant's
treatment. He illustrated that a judge could hold a review
hearing to determine how the defendant is doing in a treatment
program, but the information could not be used in some other
case or for some other purpose.
REPRESENTATIVE BERKOWITZ pointed out that people who violate
this provision by disseminating information are violating state
policy and probably state law.
MR. GUANELI said that to the extent that confidential
information is used improperly, a criminal provision covers
that.
Number 2487
REPRESENTATIVE BERKOWITZ made a motion to amend Amendment 16A by
striking "the defendant or" from page 8, lines 19-20, and
included a conforming amendment to page 18 [lines 18-19, of CSHB
4(TRA)].
TAPE 01-51, SIDE B
Number 2487
CHAIR ROKEBERG asked whether there were any objections to the
amendment to Amendment 16A [as previously amended twice]. There
being no objection, the third amendment to Amendment 16A was
adopted.
Number 2477
CHAIR ROKEBERG asked whether there were any objections to
Amendment 16A, as amended. There being no objection, Amendment
16A, as amended, was adopted.
Number 2451
CHAIR ROKEBERG made a motion to adopt Amendment 36 [22-
LS0046\S.25, Ford, 3/28/01]. He explained that this allows for
the seizure of license plates, and that he called this the
"impoundment-in-place amendment." [Amendment 36 is provided at
the end of the minutes for HB 4.]
MS. SEITZ added that Amendment 36 would put in place a procedure
by which law enforcement officials could, at the same time that
the driver's license is seized, seize the registration plates of
the vehicle and issue a temporary permit under which the vehicle
may be operated. She noted that this tracks with what is done
now regarding seizure of driver's licenses. It gives the person
the right to an appeal, and it gives the co-owner of the vehicle
the right (page 2, beginning on line 7) to reregister the
vehicle under the co-owner's name. She added that seizure of
the plates would run concurrent with the driver's license
revocation/suspension. She explained that language on page 3,
beginning on line 24, provides for impoundment of the vehicle
(for a second or higher offense) by immobilizing it at the
offender's residence for the same period of time that the
driver's license is revoked.
REPRESENTATIVE BERKOWITZ asked what would happen when someone is
arrested while driving a rental car.
MR. FORD replied that there is a provision allowing the owner to
get the plates back, and that there is also a provision for
review. He added that under the administrative review
provisions, AS 28.15.166, an innocent party can "show up" and
defend his/her rights. He also added that there is a provision
for notice in existing law, and that he had dovetailed "this"
provision with the license-revocation provisions.
REPRESENTATIVE BERKOWITZ, using the hypothetical example of a
rental car, said that at the time of arrest, the officer is
going to know that the vehicle is a rental; he then asked why
the officer is being forced to go through the process of seizing
the plates, which would force someone from the rental agency to
go through the process of reclaiming the plates. He said, "This
is the problem you get into when you do not allow discretion."
Number 2310
MARY MARSHBURN, Director, Division of Motor Vehicles (DMV),
Department of Administration, testified via teleconference and
on this same point, said that the DMV did not see that there is
"an easy out" for a rental or a leased vehicle. In these
instances, the rental car or leasing company is not a co-owner
(which would be covered under language in subsection (e), on
page 2, line 7, of Amendment 36); the company is the owner and
the user is simply the registered user. She explained that
there were basically three situations regarding operation of a
vehicle: the vehicle is leased or rented by the driver, the
driver borrows the vehicle from another person, or the vehicle
is owned or co-owned by the driver. She noted that subsection
(e) would not cover the owner of a borrowed vehicle either.
MS. MARSHBURN suggested that on page 2, line 7, of Amendment 36,
"co-owner" be replaced with "owner" in order that the owner of a
borrowed vehicle be given the same recourse that is being
offered to a co-owner. She also suggested that the last
sentence of subsection (e) be deleted from page 2, lines 11-13,
of Amendment 36, because it is almost certain that any seized
plates would not end up in the DMV's possession anytime quickly
after seizure, nor would the plates necessarily be at the same
location that an individual might come to reregister, and
therefore the DMV would simply assign new plates to the vehicle.
MS. MARSHBURN, with regard to a question posed earlier by
Representative Berkowitz, explained that it is the status of the
driver's license and the type of driver's license that dictates
whether a person can drive and under what conditions. The
vehicle does not need to be registered in that person's name in
order for him/her to drive that vehicle. If the license is
revoked, the person cannot drive anything; if the license is
limited, the person can only drive according to the limitations
of the license. With this in mind, she said that the DMV
considers this provision regarding plate confiscation as more of
a paper or record exercise, rather than having any real effect
on the DWI problem. She opined that the only practical effect
that plate seizure is going to have is going to be on the single
individual who is the sole owner of the vehicle that he/she was
driving at the time of arrest, and who does not have any access
whatsoever to any other vehicle, either borrowed, rented,
leased, or co-owned.
REPRESENTATIVE JAMES noted that if a person is driving a vehicle
without plates, it provides a visual indication that the person
should be stopped by law enforcement.
MR. FORD, on the topics of borrowed cars and leased/rented cars,
said that a provision should be added, perhaps in subsection
(e), that will allow owners of a borrowed vehicle to get their
plates returned. It also would be a good idea to come up with a
trigger that involves ownership [of leased/rented cars],
although, he added, he was not sure how that would operate at
the arrest portion of the process.
REPRESENTATIVE BERKOWITZ, on the goal of Amendment 36, noted
that in the clearest case, if a person is caught DWI while
driving his/her own vehicle, then the plates can be taken.
Number 2053
REPRESENTATIVE COGHILL, referring to page 1, line 7, of
Amendment 36, suggested adding language "for which the person is
the sole owner" to ensure that the plates are only taken from
vehicles owned by the person suspected of DWI.
Number 2007
ALVIA "STEVE" DUNNAGAN, Lieutenant, Division of Alaska State
Troopers, Department of Public Safety (DPS), testified via
teleconference. In response to questions, he explained that
vehicle registration can be, and is, checked at the time of
arrest. The arresting officers not only run the record through
the computer system, they also look for registration documents
in the vehicle itself in order to match them up with plates and
vehicle identification numbers (VINs). He did note, however,
that a fairly common problem occurs when people buy a vehicle
from another person but do not change the registration. When a
car is sold, both the buyer and the seller are supposed to let
the DMV know that the transaction took place, but that "falls
through the crack" and does not get done a lot of the time.
Because of this, sometimes an officer in the field might find
that a vehicle is registered to somebody completely different
from the person driving it, who claims to have bought the
vehicle several months prior. He added that luckily, on
occasion, the seller has already notified the DMV of the sale.
LIEUTENANT DUNNAGAN, on the topic of confiscating license plates
for DWI, suggested the committee also consider that it is not
uncommon now for people to steal license plates simply because
they don't have the funds, or the documentation to provide
proper proof, for licensing through the DMV. He added that
misuse of license plates is a misdemeanor, and is a fairly
common offense.
MR. FORD, with regard to a solution for borrowed, rented, and
leased vehicles, suggested simply requiring that it be a vehicle
that the person is a registered owner or co-owner of.
Number 1880
CHAIR ROKEBERG made a motion to amend Amendment 36 "to do just
that [for Mr. Ford to make ownership clarifications in Amendment
36]." There being no objections, the amendment to Amendment 36
was adopted.
Number 1864
CHAIR ROKEBERG made a motion to further amend Amendment 36 on
page 1 [line 11] by adding, after "issue a", the words
"distinctively marked". In this way, the temporary permit that
is issued for a vehicle's registration plates would be
distinctively marked, and could not be confused with any other
type of temporary permit. There being no objection, the second
amendment to Amendment 36 was adopted.
Number 1799
CHAIR ROKEBERG asked whether there were any objections to
Amendment 36, as amended. There being no objection, Amendment
36, as amended, was adopted.
Number 1773
CHAIR ROKEBERG made a motion to adopt Amendment 37 [22-
LS0046\S.26, Ford, 3/28/01], which read:
Page 1, line 9, following the first occurrence of
"of":
Insert
"(1)"
Page 1, line 11, following "program":
Insert "; and
(2) up to 50 percent of the minimum fines
required under (b)(1) or (n)(1) of this section"
MS. SEITZ explained that Amendment 37 gives the judge the
discretion of suspending up to 50 percent of the minimum fines
that are set in CSHB 4(TRA). She clarified that the language in
Amendment 37 amends language in Amendment 7, which was adopted
on 3/26/01.
Number 1659
CHAIR ROKEBERG asked whether there were any objections to
Amendment 37. There being no objection, Amendment 37 was
adopted.
Number 1635
CHAIR ROKEBERG made a motion to adopt Amendment 40, which read
[original punctuation provided]:
Page 20, line 21
DELETE: "240"
INSERT: "180"
Page 20, line 23:
DELETE: "480"
INSERT: "360"
Page 20, line 25:
DELETE: "two years"
INSERT: "440 days"
Conform portions of amendment 16 (if adopted) dealing
with refusal to time lines above (page 10, lines 21,
23, and 25 of amendment [number] 16)
CHAIR ROKEBERG explained that Amendment 40 reduces the amount of
"hard time" served, and reduces the fiscal note by $1.1 million.
REPRESENTATIVE COGHILL asked whether this change would still
allow enough time for adequate treatment as discussed during
previous testimony.
CHAIR ROKEBERG confirmed that it did.
REPRESENTATIVE BERKOWITZ added that it increases the current
sentence by 50 percent, instead of 100 percent, which is what
language presently in CSHB 4(TRA) does.
Number 1590
CHAIR ROKEBERG asked whether there were any objections to
Amendment 40. There being no objection, Amendment 40 was
adopted.
Number 1581
CHAIR ROKEBERG made a motion to adopt Amendment 41, which read
[original punctuation provided]:
Page 16, line 11
DELETE: "500"
INSERT: "1500"
CHAIR ROKEBERG explained that Amendment 41 is a technical
amendment; when the committee decided to delete the ".08
diversion program," the language regarding the $500 fine for a
first offense was inadvertently retained instead of the correct
amount of $1,500.
REPRESENTATIVE BERKOWITZ reminded the committee that the
language regarding refusal should conform to this change as
well.
CHAIR ROKEBERG noted that he would be giving Mr. Ford
instructions to conform language as needed when crafting the
committee substitute reflecting the adopted amendments.
Number 1520
CHAIR ROKEBERG asked whether there were any objections to
Amendment 41. There being no objection, Amendment 41 was
adopted.
Number 1487
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 38
[22-LS0046\S.27, Ford, 3/28/01]. [Amendment 38 is provided at
the end of the minutes on HB 4.]
Number 1481
REPRESENTATIVE JAMES objected.
CHAIR ROKEBERG said that although he likes Amendment 38 and the
DUI Prevention Task Force recommended the concept, he also had
to object. He offered that the problem is one of creating a
nexus between the permanent fund dividend (PFD) pool and the
ASAP (Alcohol Safety Action Program) fees, the fines, the
restitution, and the treatment fees, since currently those funds
would simply go directly into the general fund (GF). He
suggested that raising the fine to $1,500 is similar to
collecting a person's PFD.
REPRESENTATIVE BERKOWITZ argued that imposing a fine of $1,500
for a DWI does not send the same message as making a person
ineligible to receive a PFD.
CHAIR ROKEBERG countered that if the bill allowed the judge to
suspend up to 50 percent of the fine, that money could be
directed elsewhere, unlike the concept of taking a person's PFD
privileges away as proposed by Amendment 38.
Number 1346
CANDACE BROWER, Program Coordinator/Legislative Liaison, Office
of the Commissioner, Department of Corrections (DOC), commented
that Amendment 38 would attach an additional fiscal note of
about $45,000 to the DOC for a "stat-tech" position in order to
determine PFD eligibilities. She added that placing those PFDs
in the pool removes the ability of other agencies to garnish or
be assigned those funds, for example, for child support or
treatment costs.
Number 1300
REPRESENTATIVE BERKOWITZ withdrew Amendment 38 but noted that he
would still be looking for a way to institute the concept.
Number 1290
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 42,
"to statutorily raise the ASAP fee to not less than $150."
There being no objection, Conceptual Amendment 42 was adopted.
CHAIR ROKEBERG, after some discussion concerning whether to
report CSHB 4(TRA), as amended, out of committee, announced that
the committee would hold the bill over and bring back a
committee substitute. [This was followed by brief discussion
regarding when to meet next for a hearing on HB 4.] Chair
Rokeberg then gave Mr. Ford formal instructions from the
committee to "make all the non-substantive conforming amendments
and cleanup that you need to do from a drafting standpoint."
[The hearing on HB 4 was recessed to a call of the chair,
tentatively set for 11 a.m., 4/3/01; HB 4 was held over.]
AMENDMENTS
The following amendments to CSHB 4(TRA) were either discussed or
adopted during the hearing. [Shorter amendments are provided in
the main text only.]
Amendment 16A [22-LS0046\S.8, Ford, 3/21/01] (original version;
adopted after being amended three times):
Page 2, following line 28:
Insert a new bill section to read:
"* Sec. 4. AS 12.30.020 is amended by adding new
subsections to read:
(i) In addition to the conditions of release
imposed under (b) of this section, the conditions of
release established for a person charged with a
violation of AS 28.35.030 or 28.35.032 must include at
a minimum an order that the person's interest, if any,
in the motor vehicle, aircraft, or watercraft alleged
in an oral statement by a police officer, criminal
complaint, information, or indictment to have been
used in the commission of the offense be forfeited if
the person does not appear as ordered. This
subsection applies to any release before judgment of
conviction on a charge of violating AS 28.35.030 or
28.35.032, including any release on the person's own
recognizance.
(j) The judicial officer who sets the conditions
of release for a person arrested for a violation of
AS 28.35.030 or 28.35.032 shall, in addition to the
conditions of release required under (b) of this
section, set a motor vehicle, aircraft, or watercraft
return bond for the motor vehicle, aircraft, or
watercraft alleged in an oral statement of a police
officer or criminal complaint, information, or
indictment to have been used in the commission of the
offense if the records of the Department of
Administration, or the records of an agency with
similar responsibilities in another state, show that
the person arrested for the offense has any interest
in the motor vehicle, aircraft, or watercraft. The
purpose of setting a motor vehicle, aircraft, or
watercraft return bond is to secure the presence of
the motor vehicle, aircraft, or watercraft pending
trial and to provide security to be forfeited along
with the proceeds of a sale, transfer, or encumbrance
if the person's interest in the motor vehicle,
aircraft, or watercraft is sold, transferred, or
encumbered after the motor vehicle, aircraft, or
watercraft has been released pending trial. A person
who secures the release of a motor vehicle, aircraft,
or watercraft under a motor vehicle, aircraft, or
watercraft return bond must return the motor vehicle,
aircraft, or watercraft to the custody of the state
upon order of the court. If the motor vehicle's,
aircraft's, or watercraft's release has been obtained
through the posting of a motor vehicle, aircraft, or
watercraft return bond and the motor vehicle,
aircraft, or watercraft is not returned as required by
the court's order after a judgment of conviction, the
state may, in addition to obtaining the forfeited
return bond funds, seize the motor vehicle, aircraft,
or watercraft to implement the impoundment or
forfeiture ordered by the court. If the person has
not been previously convicted, the judicial officer
setting the motor vehicle, aircraft, or watercraft
return bond shall order that the requirement of the
motor vehicle, aircraft, or watercraft return bond
shall automatically expire 30 days after the motor
vehicle, aircraft, or watercraft has been seized if
the motor vehicle, aircraft, or watercraft has not
been released under a motor vehicle, aircraft, or
watercraft return bond. The motor vehicle, aircraft,
or watercraft return bond set under this subsection
may only be posted by a person alleged to have used
the motor vehicle, aircraft, or watercraft while
violating AS 28.35.030 or 28.35.032 or by a person who
agrees to return the motor vehicle, aircraft, or
watercraft upon order of the court upon penalty of
forfeiture of the bond. A motor vehicle, aircraft, or
watercraft return bond may only be posted in cash and
must be set at a minimum of (1) $250 if the person has
not been previously convicted;(2) $500 if the person
has been previously convicted and the motor vehicle,
aircraft, or watercraft is 20 years old or older; (3)
$1,000 if the person has been previously convicted and
the motor vehicle, aircraft, or watercraft is 15 years
old or older but less than 20 years old; (4) $1,500 if
the person has been previously convicted and the motor
vehicle, aircraft, or watercraft is 10 years old or
older but less than 15 years old; (5) $2,000 if the
person has been previously convicted and the motor
vehicle, aircraft, or watercraft is five years old or
older but less than 10 years old; and (6) $2,500 if
the person has been previously convicted and the motor
vehicle, aircraft, or watercraft is less than five
years old. In this subsection, "previously convicted"
has the meaning given in AS 28.35.030(o).
(k) A motor vehicle, aircraft, or watercraft
return bond may be set above the minimum provided
under (j) of this section if the motor vehicle,
aircraft, or watercraft appears to have unusually high
value for its age. A motor vehicle, aircraft, or
watercraft for which a bond is required under (j) of
this section may not be released pending trial until
(1) the person seeking release of the motor vehicle,
aircraft, or watercraft has provided proof of
ownership of the motor vehicle, aircraft, or
watercraft and paid or provided proof of payment of
the motor vehicle, aircraft, or watercraft return bond
and towing and storage fees, including the $160
administrative fee to offset the department's
processing costs; or (2) the court makes a specific
finding that the seizure of the motor vehicle,
aircraft, or watercraft was legally unjustified and
the specific finding follows a contested hearing or is
established by a stipulation between the parties. If
a motor vehicle, aircraft, or watercraft has not been
impounded for a longer period than the motor vehicle,
aircraft, or watercraft would be impounded if the
person were convicted, the court may not delete the
requirement of the motor vehicle, aircraft, or
watercraft return bond or exonerate a posted motor
vehicle, aircraft, or watercraft return bond until the
motor vehicle, aircraft, or watercraft for which bond
has been posted is returned to the department under a
court order. In this subsection, "legally
unjustified" means there was no reasonable suspicion
for the stop or probable cause for the arrest.
(l) A motor vehicle, aircraft, or watercraft
that is subject to a court order setting a motor
vehicle, aircraft, or watercraft return bond under (j)
of this section and that has not been released under
that order is subject to the disposal provisions of
AS 28.10.502(c) if a criminal complaint, information,
or indictment is not filed by the date and time of the
scheduled arraignment alleging a violation of
AS 28.35.030 or 28.35.032, or if the count of the
criminal complaint, information, or indictment
alleging a violation of AS 28.35.030 or 28.35.032 is
dismissed or is resolved by the acquittal of the
person alleged to have violated AS 28.35.030 or
28.35.032. A motor vehicle, aircraft, or watercraft
return bond expires on the date and time of the
scheduled arraignment if a criminal complaint,
information, or indictment alleging a violation of
AS 28.35.030 or 28.35.032 is not filed by the date and
time of the scheduled arraignment."
Renumber the following bill sections accordingly.
Page 7, line 27:
Delete "The"
Insert "Except as provided under
AS 28.35.030(n)(3) and AS 28.35.032(p)(3), the [THE]"
Page 18, lines 5 - 8:
Delete
"(3) the court shall revoke the person's
driver's license, privilege to drive, or privilege to
obtain a license under AS 28.15.181, and may order the
motor vehicle or aircraft that was used in commission
of the offense to be forfeited under AS 28.35.036."
Insert
"(3) the court shall revoke the person's
driver's license, privilege to drive, or privilege to
obtain a license under AS 28.15.181, shall order the
motor vehicle, aircraft, or watercraft used in the
commission of the offense impounded as required under
AS 28.35.036, and may order the motor vehicle, [OR]
aircraft, or watercraft that was used in commission of
the offense to be forfeited under AS 28.35.037;
(4) the court shall order that any motor
vehicle, aircraft, or watercraft return bond that has
been posted under AS 12.30.020(j) to secure the
release of the motor vehicle, aircraft, or watercraft
be forfeited to the state if the motor vehicle,
aircraft, or watercraft subject to the motor vehicle,
aircraft, or watercraft return bond is not returned to
the custody of the state within five days after the
sentencing; the court shall order that any motor
vehicle, aircraft, or watercraft return bond posted to
secure the release of the motor vehicle, aircraft, or
watercraft be exonerated when the motor vehicle,
aircraft, or watercraft has been returned to the
custody of the state; the court may also order that
any proceeds of any sale, transfer, or encumbrance of
the motor vehicle, aircraft, or watercraft be
forfeited to the state if the motor vehicle, aircraft,
or watercraft has been sold, transferred, or
encumbered while the motor vehicle, aircraft, or
watercraft has been subject to a motor vehicle,
aircraft, or watercraft return bond; a motor vehicle,
aircraft, or watercraft ordered impounded under
AS 28.35.036 may not be released until after the
person seeking release of the motor vehicle, aircraft,
or watercraft has satisfied the release provisions of
AS 12.30.020(k); any order of impoundment under
AS 28.35.036 or forfeiture under AS 28.35.037 is
subject to the rights of lienholders and coowners who
are not the person convicted under this section as
those rights are adjudicated in proceedings under
AS 28.35.037; if the state has brought a civil action
under AS 28.35.037 seeking forfeiture as against all
those with an interest in the motor vehicle, aircraft,
or watercraft except the person charged with a
violation of this section, that civil action shall
provide the sole forum in which lienholders and
coowners who claim an interest in the motor vehicle,
aircraft, or watercraft but are not the person charged
with a violation of this section can seek relief; in
this paragraph, "interest in the motor vehicle,
aircraft, or watercraft" means a right, claim, or
title to the motor vehicle, aircraft, or watercraft or
a legal share in the motor vehicle, aircraft, or
watercraft that the oral statement of a police
officer, complaint, indictment, or information alleges
was used in the commission of a violation of this
section [AS 28.35.036]."
Page 18, line 29, through page 19, line 3:
Delete "The Department of Health and Social
Services shall, by regulation, establish standards for
clinically appropriate treatment required under this
subsection. The treatment standards established under
this subsection must include compliance with alcohol
or drug treatment, anger management, counseling,
parent training, and domestic violence prevention."
Page 21, lines 8 - 10:
Delete
"(5) shall [MAY] also order forfeiture
under AS 28.35.036 of the vehicle, watercraft, or
aircraft used in the commission of the offense,
subject to remission under AS 28.35.037; and"
Insert
"(5) shall [MAY] also order impoundment
[FORFEITURE] under AS 28.35.036 of the motor vehicle,
[OR] aircraft, or watercraft used in the commission of
the offense, and forfeiture of the motor vehicle,
aircraft, or watercraft [SUBJECT TO REMISSION] under
AS 28.35.037; and"
Page 25, following line 20:
Insert new bill sections to read:
"* Sec. 41. AS 28.35.032(g) is amended to read:
(g) Upon conviction under this section,
(1) the court shall impose a minimum
sentence of imprisonment of
(A) not less than 72 consecutive hours and
a fine of not less than $500 [$250] if the person has
not been previously convicted;
(B) not less than 30 days, or not less than
20 days if the person performs 10 days of community
service, and a fine of not less than $3,000 [$500] if
the person has been previously convicted once;
(C) not less than 60 days and a fine of not
less than $4,000 [$1,000] if the person has been
previously convicted twice and is not subject to
punishment under (p) of this section;
(D) not less than 120 days and a fine of
not less than $5,000 [$2,000] if the person has been
previously convicted three times and is not subject to
punishment under (p) of this section;
(E) not less than 240 days and a fine of
not less than $6,000 [$3,000] if the person has been
previously convicted four times and is not subject to
punishment under (p) of this section;
(F) not less than 360 days and a fine of
not less than $7,000 [$4,000] if the person has been
previously convicted more than four times and is not
subject to punishment under (p) of this section;
(2) the court may not
(A) suspend execution of the sentence
required by (1) of this subsection or grant probation,
except on condition that the person serve the minimum
imprisonment under (1) of this subsection; or
(B) suspend imposition of sentence;
(3) the court shall revoke the person's
driver's license, privilege to drive, or privilege to
obtain a license under AS 28.15.181, shall order the
motor vehicle, aircraft, or watercraft used in the
commission of the offense impounded as required under
AS 28.35.036, and may order the motor vehicle, [OR]
aircraft, or watercraft that was used in commission of
the offense be forfeited under AS 28.35.037
[AS 28.35.036]; [AND]
(4) the sentence imposed by the court under
this subsection shall run consecutively with any other
sentence of imprisonment imposed on the person; and
(5) the court shall order that any motor
vehicle, aircraft, or watercraft return bond that has
been posted to secure the release of the motor
vehicle, aircraft, or watercraft be forfeited to the
state if the motor vehicle, aircraft, or watercraft
subject to the motor vehicle, aircraft, or watercraft
return bond is not returned to the custody of the
state within five days after the sentencing; the court
shall order that any motor vehicle, aircraft, or
watercraft return bond posted to secure the release of
the motor vehicle, aircraft, or watercraft be
exonerated when the motor vehicle, aircraft, or
watercraft has been returned to the custody of the
state; the court may also order that any proceeds of
any sale, transfer, or encumbrance of the motor
vehicle, aircraft, or watercraft be forfeited to the
state if the motor vehicle, aircraft, or watercraft
has been sold, transferred, or encumbered while the
motor vehicle, aircraft, or watercraft has been
subject to a motor vehicle, aircraft, or watercraft
return bond; a motor vehicle, aircraft, or watercraft
ordered impounded under AS 28.35.036 may not be
released until after the person seeking release of the
motor vehicle, aircraft, or watercraft has satisfied
the release provisions of AS 12.30.020(k); an order of
impoundment under AS 28.35.036 or forfeiture under
AS 28.35.037 is subject to the rights of lienholders
and coowners who are not the person convicted of a
violation of this section as those rights are
adjudicated in proceedings under AS 28.35.037; if the
state has brought a civil action under AS 28.35.037
seeking impoundment or forfeiture as against all those
with an interest in the motor vehicle, aircraft, or
watercraft except the person charged with a violation
of this section, that civil action shall provide the
sole forum in which lienholders and coowners who claim
an interest in the motor vehicle, aircraft, or
watercraft but are not the person charged with a
violation of this section can seek relief; in this
paragraph, "interest in the motor vehicle, aircraft,
or watercraft" has the meaning given in
AS 28.35.030(b)(4).
* Sec. 42. AS 28.35.032(h) is amended to read:
(h) Except as prohibited by federal law or
regulation, every provider of treatment programs to
which persons are ordered under [(l) OF] this section
shall supply the judge, prosecutor, defendant, and an
agency involved in the defendant's treatment with
information and reports concerning the defendant's
past and present assessment, treatment, and progress
[ALASKA COURT SYSTEM WITH THE INFORMATION REGARDING
THE CONDITION AND TREATMENT OF THOSE PERSONS AS THE
SUPREME COURT MAY REQUIRE BY RULE]. Information
compiled under this subsection is confidential and may
only be used in connection with court proceedings
involving the defendant or the defendant's treatment
[BY A COURT IN SENTENCING A PERSON CONVICTED UNDER
THIS SECTION, OR BY AN OFFICER OF THE COURT IN
PREPARING A PRE-SENTENCE REPORT FOR THE USE OF THE
COURT IN SENTENCING A PERSON CONVICTED UNDER THIS
SECTION]."
Renumber the following bill sections accordingly.
Page 25, following line 26:
Insert new bill sections to read:
"* Sec. 44. AS 28.35.032(l) is amended to read:
(l) The court shall order a person convicted
under this section to satisfy the screening,
evaluation, referral, and program requirements of an
alcohol safety action program if such a program is
available in the community where the person resides,
or a private or public treatment facility approved by
the division of alcoholism and drug abuse, of the
Department of Health and Social Services, under
AS 47.37 to make referrals for rehabilitative
treatment or to provide rehabilitative treatment. If
a person is convicted under (p) of this section, the
court shall order the person to be evaluated as
required by this subsection before the court imposes
sentence for the offense. Treatment required under
this subsection shall occur, as much as possible, when
the person is incarcerated. The cost of treatment
required under this subsection shall be paid to the
state by the person being treated. The cost of
treatment required to be paid to the state under this
subsection may not exceed $2,000. Upon the person's
conviction, the court shall include reimbursement of
the cost of treatment as a part of the sentence.
Except for reimbursement from a permanent fund
dividend as provided in this subsection, payment of
the cost of treatment is not required if the court
determines the person is indigent. For costs of
treatment that are not paid by the person as required
by this subsection, the state shall seek reimbursement
from the person's permanent fund dividend as provided
in AS 43.23.065. In this subsection, "cost of
treatment" does not include costs incurred as a result
of treatment not required under the treatment
standards established under this subsection.
* Sec. 45. AS 28.35.032(o) is amended to read:
(o) Imprisonment required under (g)(1)(A) or (B)
of this section shall be served at a community
residential center, or if a community residential
center is not available, at another appropriate place
determined by the commissioner of corrections. The
cost of imprisonment resulting from the sentence
imposed under (g)(1) of this section shall be paid to
the state by the person being sentenced provided,
however, that the cost of imprisonment required to be
paid under this subsection may not exceed $2,000
[$1,000]. Upon the person's conviction, the court
shall include the costs of imprisonment as a part of
the judgment of conviction. Except for reimbursement
from a permanent fund dividend as provided in this
subsection, payment of the cost of imprisonment is not
required if the court determines the person is
indigent. For costs of imprisonment that are not paid
by the person as required by this subsection, the
state shall seek reimbursement from the person's
permanent fund dividend as provided under
AS 43.23.065. While at the community residential
center or other appropriate place, a person sentenced
under (g)(1)(A) of this section shall perform at least
24 hours of community service work and a person
sentenced under (g)(1)(B) of this section shall
perform at least 160 hours of community service work,
as required by the director of the community
residential center or other appropriate place. In
this subsection, "appropriate place" means a facility
with 24-hour on-site staff supervision that is
specifically adapted to provide a residence, and
includes a correctional center, [RESIDENTIAL TREATMENT
FACILITY, HOSPITAL,] halfway house, group home, work
farm, work camp, or other place that provides varying
levels of restriction; "appropriate place" does not
mean a residential treatment facility or a hospital.
* Sec. 46. AS 28.35.032(p) is amended to read:
(p) A person is guilty of a class C felony if
the person is convicted under this section and has
been previously convicted two or more times since
January 1, 1996, and within the 10 [FIVE] years
preceding the date of the present offense. For
purposes of determining minimum sentences based on
previous convictions, the provisions of
AS 28.35.030(o)(4) apply. Upon conviction,
(1) the court shall impose a fine of not
less than $10,000 [$5,000] and a minimum sentence of
imprisonment of not less than
(A) 240 [120] days if the person has been
previously convicted twice;
(B) 480 [240] days if the person has been
previously convicted three times;
(C) two years [360] days if the person has
been previously convicted four or more times;
(2) the court may not
(A) suspend execution of the sentence
required by (1) of this subsection or grant probation,
except on condition that the person serve the minimum
imprisonment under (1) of this subsection; or
(B) suspend imposition of sentence;
(3) the court shall permanently revoke the
person's driver's license, privilege to drive, or
privilege to obtain a license subject to restoration
under (r) of this section [UNDER AS 28.15.181(c)];
(4) the court may order as a condition of
probation or parole that the person take a drug, or
combination of drugs, intended to prevent consumption
of an alcoholic beverage; a condition of probation
imposed under this paragraph is in addition to any
other condition authorized under another provision of
law;
(5) the sentence imposed by the court under
this subsection shall run consecutively with any other
sentence of imprisonment imposed on the person; [AND]
(6) the court may also order impoundment
[FORFEITURE] under AS 28.35.036, of the motor vehicle,
[OR] aircraft, or watercraft used in the commission of
the offense, or forfeiture of the motor vehicle,
aircraft, or watercraft [SUBJECT TO REMISSION] under
AS 28.35.037; and
(7) shall order the department to revoke
the registration for any vehicle registered by the
department in the name of the person convicted under
this subsection; if a person convicted under this
subsection is a registered co-owner of a vehicle, the
department shall reissue the vehicle registration and
omit the name of the person convicted under this
subsection.
* Sec. 47. AS 28.35.032 is amended by adding new
subsections to read:
(r) Upon request, the department shall review a
driver's license revocation imposed under (p)(3) of
this section and may restore the driver's license if
(1) the license has been revoked for a
period of at least 10 years;
(2) the person has not been convicted of a
criminal offense since the license was revoked; and
(3) the person provides proof of financial
responsibility.
(s) A person who fails to satisfy alcoholism
treatment requirements imposed by the court or an
authorized agency under (l) of this section is not
eligible for good time deductions credited under
AS 33.20.
(t) If a person is convicted under this section
and has been previously convicted, the court shall
order the person to surrender the registration plates
for any vehicle registered or co-registered in the
person's name. The person shall surrender the
registration plates to the department by the close of
the next business day. A person other than the person
convicted under this section who applies to register a
motor vehicle that has registration plates that were
required to be surrendered under this section but that
were not surrendered as required by this subsection
may not register the vehicle unless the person
registering the vehicle provides proof satisfactory to
the department that the person did not know that the
registration plates were required to be surrendered
under this subsection or the person pays twice the
applicable registration fee required under
AS 28.10.421."
Renumber the following bill sections accordingly.
Page 27, line 26, through page 28, line 6:
Delete all material.
Insert new bill sections to read:
"* Sec. 53. AS 28.35.036 is repealed and reenacted
to read:
Sec. 28.35.036. Impoundment of a motor vehicle,
aircraft, or watercraft. (a) A motor vehicle,
aircraft, or watercraft may be impounded if the
impoundment is incident to a valid arrest by a peace
officer and there is probable cause to believe the
motor vehicle, aircraft, or watercraft was operated or
driven by a person while committing a violation of
AS 28.35.030 or 28.35.032. A motor vehicle, aircraft,
or watercraft impounded under this subsection may not
be held for more than two days, unless a court orders
continuation of the impoundment.
(b) If a person is convicted under AS 28.35.030
or 28.35.032, the court shall order impoundment of the
motor vehicle, aircraft, or watercraft involved in the
commission of the offense for a period of at least 30
days.
(c) Notwithstanding any other provisions of law,
costs of impoundment incurred by the state shall be
waived by the state or, if already collected, refunded
by the state, if the person operating the motor
vehicle, aircraft, or watercraft during the incident
that resulted in impoundment is not convicted of a
violation of AS 28.35.030 or 28.35.032.
(d) A motor vehicle, aircraft, or watercraft
ordered impounded under this section that is not
claimed at the end of the court-ordered period of
impoundment may be disposed of under the provisions of
this section. If the contents of the motor vehicle,
aircraft, or watercraft have not been recovered before
disposal, the contents may be disposed of with the
motor vehicle, aircraft, or watercraft. Personal
property in a motor vehicle, aircraft, or watercraft
that is subject to a motor vehicle, aircraft, or
watercraft return bond and that has not been released
under the motor vehicle, aircraft, or watercraft
return bond can be recovered only by the owner of the
motor vehicle, aircraft, or watercraft and only upon
payment of a fee charged for monitoring the recovery
of the personal property. The fee shall be set by
contract between the towing and storage contractor and
the state if it is not established by the department.
The fee shall be recoverable by the owner of the motor
vehicle, aircraft, or watercraft if a court makes a
specific finding that the seizure of the motor
vehicle, aircraft, or watercraft was legally
unjustified following a contested hearing or under a
stipulation between the parties.
(e) A motor vehicle, aircraft, or watercraft
that is impounded and that has not been released under
(g) of this section shall be held in the custody of
the department or a private corporation authorized by
the department to retain custody of the motor vehicle,
aircraft, or watercraft, subject only to an order of a
court of competent jurisdiction. If a motor vehicle,
aircraft, or watercraft is impounded under this
section, the department or an authorized designee may
(1) remove the motor vehicle, aircraft, or
watercraft and any contents of the motor vehicle,
aircraft, or watercraft to a place designated by the
court; or
(2) take custody of the motor vehicle,
aircraft, or watercraft and any contents of the motor
vehicle, aircraft, or watercraft and remove it to an
appropriate location for disposition in accordance
with law.
(f) A private corporation may not make or
perform a contract to tow, store, or retain custody of
a motor vehicle, aircraft, or watercraft impounded
under this section if any of the owners of that
private corporation have been convicted of a felony or
a crime involving larceny, theft, or receiving and
concealing stolen property within 10 years before the
date of execution of the contract or during the term
of the contract. A private corporation may not make
or perform a contract to tow, store, or retain custody
of a motor vehicle, aircraft, or watercraft seized or
impounded under this section if an employee of the
private corporation has been convicted of a felony or
a crime involving larceny, theft, or receiving and
concealing stolen property within five years before
the date of execution of the contract or during the
term of the contract.
(g) Unless a motor vehicle, aircraft, or
watercraft is released under an agreement under
AS 28.35.037(j), the person seeking possession of a
motor vehicle, aircraft, or watercraft impounded by
the state must obtain an order authorizing release of
the motor vehicle, aircraft, or watercraft. A release
may not be granted unless the applicant can satisfy
the release provisions established under
AS 12.30.020(k).
(h) An impoundment may be resolved under
AS 28.35.037(j).
* Sec. 54. AS 28.35.037 is repealed and reenacted
to read:
Sec. 28.35.037. Forfeiture of a motor
vehicle, aircraft, or watercraft. (a) After a
person is convicted of an offense under AS 28.35.030
or 28.35.032, the court may order that the person's
interest in the motor vehicle, aircraft, or watercraft
involved in the commission of the offense be forfeited
to the state if the person has any interest in the
motor vehicle, aircraft, or watercraft.
(b) If forfeiture is ordered under (a) of this
section, the court shall schedule a hearing on the
matter and shall notify the state and the convicted
person of the time and place set for the hearing.
(c) In addition to forfeiture in conjunction
with a criminal proceeding under (b) of this section,
the department shall seek forfeiture of a motor
vehicle, aircraft, or watercraft in a civil action or
in an administrative action if the person who operates
or drives the motor vehicle, aircraft, or watercraft
involved in a violation of AS 28.35.030 or 28.35.032
has been previously convicted. After commencement of
an administrative forfeiture action, the department
shall provide notice as described under (e) and (f) of
this section and shall schedule a hearing on the
matter. The prevailing party in an administrative
forfeiture action shall be awarded the same costs and
attorney fees that would be awarded under the Alaska
Rules of Civil Procedure. Upon request of the
department or a claimant, a civil or administrative
action seeking forfeiture of a motor vehicle,
aircraft, or watercraft shall be delayed until
conclusion of any pending criminal charges arising out
of the incident giving rise to the forfeiture
proceedings.
(d) An administrative hearing required under (c)
of this section shall be held before a hearing officer
designated by the commissioner. Upon the consent of
the administrative director of the state court system,
the commissioner may designate a district court judge
or a magistrate to serve as the hearing officer. The
hearing officer has the authority to
(1) administer oaths and affirmations;
(2) examine witnesses and take testimony;
(3) receive relevant evidence;
(4) issue subpoenas, take depositions, or
cause depositions or interrogatories to be taken;
(5) regulate the course and conduct of the
hearing;
(6) make a final ruling on the issue.
(e) Upon receiving notice from the court of the
time and place set for a forfeiture hearing under (b)
of this section, or upon initiating a civil action or
an administrative forfeiture action under (c) of this
section, the state shall provide to every person who
has, according to the records of the department, an
ownership or security interest in the motor vehicle,
aircraft, or watercraft written notice that includes
(1) a description of the motor vehicle,
aircraft, or watercraft;
(2) the time and place of the forfeiture
hearing;
(3) the legal authority under which the
motor vehicle, aircraft, or watercraft may be
forfeited;
(4) notice of the right to appear to
protect the interest in the motor vehicle, aircraft,
or watercraft.
(f) If the registered owner of the motor
vehicle, aircraft, or watercraft subject to a
forfeiture action cannot be determined from the
records of the department, the state shall publish a
notice of the forfeiture action for two consecutive
weeks in a newspaper of general circulation in the
judicial district in which the forfeiture action is
filed. The notice must include a description of the
motor vehicle, aircraft, or watercraft, the time and
place of impoundment, and directions as to whom to
contact for more information.
(g) A person who fails to enter an appearance in
an administrative forfeiture action within 20 days
after receiving written notice required under (e) of
this section or 20 days after completion of the notice
required under (f) of this section, whichever is
later, waives the right to object to the forfeiture
action. A party who requests a hearing in a civil
forfeiture action shall be deemed to have received
notice of the civil action as required by (f) of this
section. A party who secures the release of a motor
vehicle, aircraft, or watercraft pending a hearing
shall accept service of notice of the civil action as
a condition of release of the motor vehicle, aircraft,
or watercraft. For a regulated lienholder, the
requirement of notice of claim and answer is met by
filing the information required under (s) of this
section and including a statement of the original
amount of the loan giving rise to the lien and the
current balance of that loan.
(h) At a forfeiture hearing required under (b)
or (c) of this section, a person other than the
defendant who claims an ownership or security interest
in the motor vehicle, aircraft, or watercraft shall
establish by a preponderance of the evidence that
(1) the person has an interest in the motor
vehicle, aircraft, or watercraft acquired in good
faith;
(2) a person other than the claimant was
convicted of the offense that resulted in the
forfeiture;
(3) before parting with possession of the
motor vehicle, aircraft, or watercraft the person did
not know or have reasonable cause to believe that it
would be used in the commission of an offense; and
(4) the costs of impoundment have been paid
as required under AS 28.35.036.
(i) If the state is seeking forfeiture of a
motor vehicle, aircraft, or watercraft in a hearing
required under (b) or (c) of this section and the
person who was in possession of the motor vehicle,
aircraft, or watercraft during the commission of the
offense was driving with a suspended license in
violation of AS 28.15.291 or was the spouse, child, or
sibling of a person with an ownership or security
interest in the motor vehicle, aircraft, or
watercraft, it is rebuttably presumed that the person
holding the ownership or security interest did know or
have reasonable cause to believe that the motor
vehicle, aircraft, or watercraft would be used in the
commission of an offense.
(j) The state may enter into an agreement with
the registered owner or lienholder of a motor vehicle,
aircraft, or watercraft to resolve a civil or
administrative impound or forfeiture action and permit
release of the motor vehicle, aircraft, or watercraft.
Any agreement allowed under this subsection must
include
(1) acceptance by the owner or lienholder
of responsibility for meeting the requirements of
AS 12.30.020(k)(1);
(2) agreement that the owner or lienholder
shall prevent the individual arrested for or charged
with a violation of AS 28.35.030 or 28.35.032 from
operating the motor vehicle, aircraft, or watercraft
until properly licensed; and
(3) acknowledgment by the owner or
lienholder that failure to fulfill an obligation under
the agreement may result in forfeiture of the motor
vehicle, aircraft, or watercraft at the option of the
state; this paragraph does not apply to a regulated
lienholder.
(k) An acquittal or a conviction of a lesser
offense in a criminal proceeding for a violation of
AS 28.35.030 or 28.35.032 provides a defense in a
civil or administrative proceeding seeking impoundment
or forfeiture of the motor vehicle, aircraft, or
watercraft if that civil or administrative proceeding
is based on the same conduct that forms the basis for
the criminal charge.
(l) A claimant who is not charged with a
violation of AS 28.35.030 or 28.35.032 may petition
for setting or revision of bail release of a motor
vehicle, aircraft, or watercraft before a civil or
administrative action is filed. A petition allowed
under this subsection shall be made to a court of
competent jurisdiction.
(m) If the state is seeking forfeiture of a
motor vehicle, aircraft, or watercraft under this
section and a person meets the burden of proof
required under (h) of this section, the court or the
department shall release the motor vehicle, aircraft,
or watercraft to the person together with title to the
motor vehicle, aircraft, or watercraft if
(1) the person is an owner or co-owner of
the motor vehicle, aircraft, or watercraft;
(2) the value of the person's interest
exceeds the value of the motor vehicle, aircraft, or
watercraft; or
(3) the value of the interest is less than
the value of the motor vehicle, aircraft, or
watercraft and the person agrees to sell the motor
vehicle, aircraft, or watercraft and pay the state the
value of the offender's interest in the motor vehicle,
aircraft, or watercraft.
(n) Upon forfeiture of a motor vehicle,
aircraft, or watercraft, the court or the department
shall require the surrender of the registration and
certificate of title of that motor vehicle, aircraft,
or watercraft. The registration and certificate of
title shall be delivered to the department.
(o) A motor vehicle, aircraft, or watercraft
forfeited under this section may be disposed of by the
department as provided under this subsection. Before
disposing of a motor vehicle, aircraft, or watercraft
forfeited under this section, the department shall
make an inventory of the contents of any motor
vehicle, aircraft, or watercraft seized. Property
forfeited under this section includes both the motor
vehicle, aircraft, or watercraft that is the subject
of the forfeiture action and the contents of the motor
vehicle, aircraft, or watercraft if those contents
have not been recovered before the date of the
disposal. A motor vehicle, aircraft, or watercraft
forfeited under this section may be disposed of at the
discretion of the department including
(1) sale of the property at an auction
conducted by an auctioneer not employed by the impound
contractor where the proceeds are used for payment of
all proper expenses of seizure, custody, the costs of
the auction, court costs, and attorney fees; if the
sale is arranged for by the impound contractor, the
department shall receive at least 30 percent of the
proceeds of any sale of forfeited motor vehicles,
aircraft, or watercraft following deduction for the
costs charged by the auctioneer for the auction of the
motor vehicles, aircraft, or watercraft regardless of
whether the costs of impound and storage exceed the
value of the motor vehicles, aircraft, or watercraft
sold;
(2) taking custody of the property and
using it in the enforcement of the municipal and state
criminal codes; or
(3) destroying the property.
(p) Within 30 days after the issuance of the
final determination of the department under this
section, a person aggrieved by the determination may
file an appeal in superior court for judicial review
of the department's determination. The judicial
review shall be on the record, without taking
additional testimony. The court may reverse the
department's determination if the court finds that the
department misinterpreted the law, acted in an
arbitrary and capricious manner, or made a
determination unsupported by the evidence in the
record.
(q) Forfeiture of a motor vehicle, aircraft, or
watercraft under this section extinguishes the rights
of all claimants or creditors who do not appear at the
forfeiture hearing under (b) or (c) of this section.
(r) For purposes of this section, convictions
both for driving while intoxicated under AS 28.35.030
and for refusal to submit to a chemical test
authorized under AS 28.35.031(a) or (g), if arising
out of a single transaction and a single arrest, are
considered one conviction.
(s) A claimant who is a regulated lienholder
meets the burden of proof required under (h) of this
section by filing with the court a copy of the motor
vehicle's, aircraft's, or watercraft's certificate of
title or other security instrument reflecting the
lien, together with an affidavit stating the amount of
the lien and stating that the claimant is a regulated
lienholder and was not in possession of the motor
vehicle, aircraft, or watercraft at the time of the
act that resulted in the seizure of the motor vehicle,
aircraft, or watercraft. The presumption provided in
(i) of this section does not apply to a regulated
lienholder.
(t) Nothing in this section shall be construed
to place upon a regulated lienholder a duty to inquire
into the driving record of any loan applicant or any
member of the loan applicant's family or household,
and failure to do so may not be used as evidence
against the regulated lienholder in any forfeiture
proceeding or other civil action. Knowledge from
other sources of the loan applicant's driving record
is usable only to the extent that it is relevant under
(h) of this section.
(u) Property subject to the interest of a
regulated lienholder whose interest has not been
forfeited may not be disposed of as provided in this
section except with the consent of the regulated
lienholder. A regulated lienholder's interest in a
motor vehicle, aircraft, or watercraft may not be
subject to forfeiture in any case where
(1) the individual who allegedly used the
motor vehicle, aircraft, or watercraft in violation of
AS 28.35.030 or 28.35.032 is not the person whose
dealings with the lienholder gave rise to the lien; or
(2) the motor vehicle, aircraft, or
watercraft that the individual was driving, operating,
or in actual physical control of at the time of the
alleged violation was not the motor vehicle, aircraft,
or watercraft involved in the offense giving rise to a
conviction under AS 28.35.030 or 28.35.032.
(v) A claimant may petition the court for sale
of a motor vehicle, aircraft, or watercraft before
final disposition of court proceedings. The court
shall grant a petition for sale upon a finding that
the sale is in the best interest of the state.
Proceeds from the sale plus interest to the date of
final disposition of the court proceedings become the
subject of the forfeiture action.
(w) Property forfeited and sold at auction under
this section shall be sold by an auctioneer approved
before the auction by the department. Before the
auction, the department must approve in advance the
auctioneer's costs or the method for determining the
auctioneer's costs. The impound contractor shall
provide to the department a notarized copy of the
auctioneer's report of the auction signed by the
auctioneer. The department shall certify the proper
disposal of property forfeited under this section.
(x) In a contested forfeiture proceeding
concerning a motor vehicle, aircraft, or watercraft
titled in the names of more than one owner on the
certificate of title, if one of the owners has an
interest that is forfeited, the court (1) may, subject
to (m) of this section, order the forfeiture of the
entire interest of all the owners in a motor vehicle,
aircraft, or watercraft that is titled in the names of
more than one owner in the disjunctive; (2) shall,
subject to (m) of this section, order the forfeiture
of the interest of any owner in a motor vehicle,
aircraft, or watercraft that is titled in the names of
more than one owner in the conjunctive; owners of a
motor vehicle, aircraft, or watercraft titled in the
names of more than one owner in the conjunctive are
rebuttably presumed to own the motor vehicle,
aircraft, or watercraft in equal shares. In
circumstances described in this subsection, the court
shall order that the motor vehicle, aircraft, or
watercraft be sold at public auction and further order
that the proceeds from the sale of the motor vehicle,
aircraft, or watercraft be held by the department;
after deduction of the reasonable costs of the
auction, an amount of the proceeds of the auction for
the sale of that motor vehicle, aircraft, or
watercraft that is equal to the percentage interest of
the owner whose interest has not been forfeited shall
be returned if the owner whose interest has not been
forfeited applies to the department within 60 days of
the auction; if the owner whose interest has not been
forfeited does not apply within that period, those
funds become the property of the state subject to the
rights of any other claimant to those funds.
(y) A person who has secured the release of a
motor vehicle, aircraft, or watercraft under a motor
vehicle, aircraft, or watercraft return bond under
AS 12.30.020(j) and who wilfully fails to return that
motor vehicle, aircraft, or watercraft when ordered by
a court or an administrative hearing officer, is
guilty of a violation. Each day that a motor vehicle,
aircraft, or watercraft is not returned constitutes a
separate offense under this subsection.
(z) In this section,
(1) "legally unjustified" means there was
no
(A) reasonable suspicion for the stop; or
(B) probable cause for the arrest;
(2) "previously convicted" has the meaning
given in AS 28.35.030(o);
(3) "regulated lienholder" means an entity
whose lien on the motor vehicle, aircraft, or
watercraft is a result of lending activities that are
subject to regulation by the National Credit Union
Administration, the Comptroller of the Currency,
federal banking regulators, the Federal Trade
Commission, or the Department of Community and
Economic Development.
* Sec. 55. AS 28.35.038 is amended to read:
Sec. 28.35.038. Municipal impoundment and
forfeiture. Notwithstanding other provisions in this
title, a municipality may adopt an ordinance providing
for the impoundment or forfeiture of a motor vehicle
[,] or aircraft [,] involved in the commission of an
offense under AS 28.35.030, 28.35.032, or an ordinance
with elements substantially similar to AS 28.35.030 or
28.35.032. An ordinance adopted under this section
may include a fee for the administrative costs
incurred by the municipality and is not required to be
consistent with this title or regulations adopted
under this title."
Renumber the following bill sections accordingly.
Page 28, line 28:
Delete "Section 6"
Insert "Section 7"
Page 29, line 2:
Delete "Section 47"
Insert "Section 56"
Page 29, line 3:
Delete "Section 51"
Insert "Section 60"
Amendment 36 [22-LS0046\S.25, Ford, 3/28/01] (original version;
adopted after being amended twice):
Page 4, following line 19:
Insert a new bill section to read:
"* Sec. 7. AS 28.10 is amended by adding a new
section to read:
Sec. 28.10.453. Seizure of registration plates
resulting from chemical sobriety tests and refusals to
submit to tests. (a) If a law enforcement officer
seizes a driver's license under AS 28.15.165, the
officer shall also seize the registration plates for
the motor vehicle the person was operating and shall
deliver the registration plates to the department.
(b) The law enforcement officer who seizes
registration plates under this section shall
(1) issue a temporary permit under which
the vehicle may be operated that expires seven days
after it is delivered to the person; and
(2) give the person written notice that,
unless the person, within seven days, requests an
administrative review under AS 28.15.166, the
department shall suspend the registration for the
motor vehicle and retain possession of the motor
vehicle registration plates as provided under (d) of
this section.
(c) Unless the person has obtained a stay of a
departmental action under AS 28.15.166, if the
chemical test administered under AS 28.33.031(a) or
AS 28.35.031(a) or (g) produced a result described in
AS 28.35.030(a)(2) or the person refused to submit to
a chemical test authorized under AS 28.33.031(a) or
AS 28.35.031(a) or (g), the department shall revoke
the registration for the motor vehicle. The
department's action takes effect seven days after
delivery to the person of the notice required under
(b) of this section, and after receipt of a sworn
report of a law enforcement officer as described under
AS 28.15.165(c).
(d) The period of revocation of a motor vehicle
registration under this section shall be for the
appropriate minimum period for driver's license
revocations under AS 28.15.181(c) or court
disqualifications under AS 28.33.140. A department
hearing officer may grant limited motor vehicle
registration privileges to a person whose motor
vehicle registration was revoked under this section in
accordance with the standards set out in AS 28.15.201
for granting limited driver's license privileges.
(e) The department shall allow a person who is a
co-owner of a motor vehicle and who is not the person
who was operating the motor vehicle when the
registration plates were seized under (a) of this
section to register the motor vehicle without the name
of the person who was operating the vehicle when the
registration plates were seized under (a) of this
section. If a person registers a motor vehicle under
this subsection, the department shall reissue the
registration plates seized under (a) of this section."
Renumber the following bill sections accordingly.
Page 6, following line 8:
Insert new bill sections to read:
"* Sec. 11. AS 28.15.166(a) is amended to read:
(a) A person who has received a notice under
AS 28.10.453(b) or AS 28.15.165(a) may make a written
request for administrative review of the department's
action under AS 28.10.453(c) or AS 28.15.165(c) or for
limited motor vehicle registration privileges under
AS 28.10.453(d) or for limited license privileges
under AS 28.15.165(d). If the person's driver's
license has not been previously surrendered to the
department, it shall be surrendered to the department
at the time the request for review is made.
* Sec. 12. AS 28.15.166(b) is amended to read:
(b) A request for review of the department's
action under AS 28.10.453 or AS 28.15.165 shall be
made within seven days after receipt of the notice
under AS 28.10.453 or AS 28.15.165, or the right to
review is waived and the action of the department
under AS 28.10.453(c) or AS 28.15.165(c) is final. If
a written request for a review is made after
expiration of the seven-day period, and if it is
accompanied by the applicant's verified statement
explaining the failure to make a timely request for a
review, the department shall receive and consider the
request. If the department finds that the person was
unable to make a timely request because of lack of
actual notice of the department's action or because of
factors of physical incapacity such as hospitalization
or incarceration, the department shall waive the
period of limitation, reopen the matter, and grant the
review request. An initial request for limited
license privileges may be made at any time.
Subsequent requests for limited license privileges may
not be made unless the applicant demonstrates a
significant change in circumstances.
* Sec. 13. AS 28.15.166(c) is amended to read:
(c) Upon receipt of a request for review, if it
appears that the person holds a valid driver's license
or motor vehicle registration plates and that the
driver's license or motor vehicle registration plates
have [HAS] been surrendered, the department shall
issue a temporary driver's permit or motor vehicle
registration that is valid until the scheduled date
for the review. A person who has requested a review
under this section may request, and the department may
grant for good cause, a delay in the date of the
hearing. If necessary, the department may issue
additional temporary permits to stay the effective
date of its action under AS 28.15.165(c) until the
final order after the review is issued."
Renumber the following bill sections accordingly.
Page 18, line 8, following "AS 28.35.036":
Insert ";
(4) if the person has been previously
convicted, the court shall order the motor vehicle or
aircraft used in the commission of the offense
forfeited under AS 28.35.036 or shall order the
vehicle taken to the owner's residence and immobilized
for the period of time that the person's driver's
license is revoked; the court shall also require the
person to pay any administrative costs of keeping the
motor vehicle or aircraft immobilized"
Page 29, line 2:
Delete "Section 47"
Insert "Section 51"
Page 29, line 3:
Delete "sec. 55"
Insert "sec. 54"
Amendment 38 [22-LS0046\S.27, Ford, 3/28/01] (withdrawn after
being discussed):
Page 18, line 8, following "AS 28.35.036":
Insert ";
(4) the person is disqualified from
receiving a permanent fund dividend under
AS 43.23.005(d)"
Page 28, following line 17:
Insert new bill sections to read:
"* Sec. 49. AS 43.23.005(d) is amended to read:
(d) Notwithstanding the provisions of (a) - (c)
of this section, an individual is not eligible for a
permanent fund dividend for a dividend year when
(1) during the qualifying year, the
individual was sentenced as a result of conviction in
this state of a felony;
(2) during all or part of the qualifying
year, the individual was incarcerated as a result of
the conviction in this state of a
(A) felony; [OR]
(B) misdemeanor if the individual has been
convicted of two or more prior crimes as defined in
AS 11.81.900; or
(C) violation of AS 28.35.030.
* Sec. 50. AS 43.23.028(a) is amended to read:
(a) By October 1 of each year, the commissioner
shall give public notice of the value of each
permanent fund dividend for that year and notice of
the information required to be disclosed under (3) of
this subsection. In addition, the stub attached to
each individual dividend check and direct deposit
advice must
(1) disclose the amount of each dividend
attributable to income earned by the permanent fund
from deposits to that fund required under art. IX,
sec. 15, Constitution of the State of Alaska;
(2) disclose the amount of each dividend
attributable to income earned by the permanent fund
from appropriations to that fund and from amounts
added to that fund to offset the effects of inflation;
(3) disclose the amount by which each
dividend has been reduced due to each appropriation
from the dividend fund, including amounts to pay the
costs of administering the dividend program and the
hold harmless provisions of AS 43.23.075;
(4) include a statement that an individual
is not eligible for a dividend when
(A) during the qualifying year the
individual was convicted of a felony;
(B) during all or part of the qualifying
year, the individual was incarcerated as a result of
the conviction of a
(i) felony; [OR]
(ii) misdemeanor if the individual has been
convicted of two or more prior crimes; or
(iii) violation of AS 28.35.030;
(5) include a statement that the
legislative purpose for making individuals listed
under (4) of this subsection ineligible is to
(A) obtain reimbursement for some of the
costs imposed on the state criminal justice system
related to incarceration or probation of those
individuals;
(B) provide funds for payments to crime
victims and for grants for the operation of domestic
violence and sexual assault programs;
(6) disclose the total amount that would
have been paid during the previous fiscal year to
individuals who were ineligible to receive dividends
under AS 43.23.005(d) if they had been eligible;
(7) disclose the total amount appropriated
for the current fiscal year under (b) of this section
for each of the funds and agencies listed in (b) of
this section."
Renumber the following bill sections accordingly.
Page 29, line 3:
Delete "sec. 51"
Insert "sec. 53"
[End of amendments - the hearing on HB 4 was recessed to a call
of the chair, tentatively set for 11 a.m., 4/3/01; HB 4 was held
over.]
ADJOURNMENT
Number 0982
There being no further business before the committee, the House
Judiciary Standing Committee meeting was [recessed in order that
HB 4 could be heard on 4/3/01] at 4:30 p.m.
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