Legislature(2001 - 2002)
05/05/2001 08:49 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY COMMITTEE
May 5, 2001
8:49 p.m.
MEMBERS PRESENT G
Senator Robin Taylor, Chair
Senator John Cowdery
Senator Gene Therriault
Senator Johnny Ellis
MEMBERS ABSENT
Senator Dave Donley, Vice Chair
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 4(FIN) am
"An Act relating to motor vehicles and to operating a motor
vehicle, aircraft, or watercraft; and providing for an effective
date."
MOVED SCS CSHB 4(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 132(2d RLS)(efd am)
"An Act relating to the possession, distribution, importation, and
transportation of alcohol in a local option area; requiring liquor
license applicants to submit fingerprints for the purpose of
conducting a criminal history background check, and relating to the
use of criminal justice information by the Alcoholic Beverage
Control Board; relating to the offenses of operating a motor
vehicle, aircraft, or watercraft while intoxicated and refusal to
take a breath test; relating to implied consent to take a chemical
test; 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
CS FOR HOUSE BILL NO. 179(FIN)
"An Act relating to underage drinking and drug offenses; and
providing for an effective date."
MOVED CSHB 179 (FIN) OUT OF COMMITTEE
SENATE BILL NO. 177
"An Act relating to driving while intoxicated and to presumptions
arising from the amount of alcohol in a person's breath or blood;
and providing for an effective date."
MOVED SB 177 OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 152(RLS)
"An Act relating to brewpub licenses; and providing for an
effective date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 181(JUD)
"An Act relating to the obligations of spouses, to insurance
policies of spouses, to the nonprobate transfer of property on
death to a community property trust, to the division of the
community property of spouses at death, and to the Alaska Community
Property Act; amending Rule 301, Alaska Rules of Evidence; and
providing for an effective date."
MOVED CSHB 181(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 191(L&C)
"An Act relating to insurance pooling by air carriers."
MOVED CSSB 191(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
HB 4 - No previous Senate action.
HB 132 - No previous Senate action.
SB 177 - See Judiciary minutes dated 4/27/01.
HB 152 - See Labor and Commerce minutes dated 5/1/01.
HB 181 - See Labor and Commerce minutes dated 5/2/01.
SB 191 - See Labor and Commerce minutes dated 4/24/01 and
5/1/01. See Judiciary minutes dated 5/4/01.
WITNESS REGISTER
Representative Norman Rokeberg
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 4, HB 132, and HB 179
Ms. Cindy Cashen
Mothers Against Drunk Driving
No address furnished
Juneau, Alaska 99801
POSITION STATEMENT: Supported CSHB 4(FIN) AM
Mr. Blair McCune
Office of Public Advocacy
Department of Administration
900 W 5th Ave., Suite 525
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Testified on CSHB 4(FIN) AM
Ms. Mary Marshburn
Division of Motor Vehicles
Department of Administration
3300B Fairbanks St.
Anchorage, AK 99503
POSITION STATEMENT: Supports parts of CSHB 4(FIN) AM
Ms. Janet Seitz
Staff to Representative Rokeberg
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified on CSHB 4(FIN) AM and HB 132
Mr. Dean Guaneli
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Supports HB 132
Mr. Elmer Lindstrom, Special Assistant
Office of the Commissioner
Department of Health &
Social Services
PO Box 110601
Juneau, Alaska 99801-0601
POSITION STATEMENT: Supports HB 179
Mr. Robert Buttcane, Legislative Liaison
Division of Juvenile Justice
Department of Health &
Social Services
PO Box 110601
Juneau, Alaska 99801-0601
POSITION STATEMENT: Supports HB 179
Mr. Kevin Hand
Staff to Representative Andrew Halcro
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Introduced HB 152 for the sponsor
Mr. Matt Jones
Moose's Tooth
Anchorage, AK
POSITION STATEMENT: Supports HB 152
Mr. Chuck Freese
Great Bear Brewing Company
Wasilla, AK
POSITION STATEMENT: Supports HB 152
Representative Lisa Murkowski
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of HB 181
Mr. Dave Chafftel
No address provided
Anchorage, AK
POSITION STATEMENT: Supports HB 181
ACTION NARRATIVE
TAPE 01-31, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting
to order at 8:49 p.m. Chairman Taylor announced the first order of
business would be CSHB 4(FIN)am.
CSHB 4(FIN)am - MOTOR VEHICLES & DRUNK DRIVING
REPRESENTATIVE NORMAN ROKEBERG, sponsor of HB 4, gave the following
description of the measure. CSHB 4(FIN)am is omnibus drunk driving
legislation. It is the result of work done by the Municipality of
Anchorage (MOA) Assembly's task force on driving while under the
influence (DUI) of alcohol. That task force was formed last year
after a number of tragic accidents occurred in Anchorage. CSHB
4(FIN)am does the following things:
· Lowers the blood alcohol content limit from .1 to .08;
· Mandates treatment for prisoners;
· Deletes the five-year "look-back" provision while phasing in a
ten-year "look-back" provision;
· Provides for discretionary immobilization on the second
offense and discretionary forfeiture of vehicles on the third
offense; and
· Requires seizure of license plates, increased fees and fines
and cost caps on various areas of the law to enhance revenue
and offset associated costs.
REPRESENTATIVE ROKEBERG commented: "Mr. Chairman, this is the
carrot and stick and the penalty provisions of the alcohol package
that is emanating from the House this year." The intention is to
separate the vehicle from the habitual offender. CSHB 4(FIN)am
also emphasizes certain elements of treatment, particularly for
those who are incarcerated. He offered to answer questions.
CHAIRMAN TAYLOR asked why the term "intoxicated" was changed to
"under the influence of an alcoholic beverage, inhalant, or
controlled substance."
REPRESENTATIVE ROKEBERG said that change was made for a number of
reasons. The term, "driving while under the influence ..." is more
applicable throughout the United States and inhalants and other
controlled substances were added to the definition. He believes
that lowering the blood alcohol level (BAC) from .1 to .08 and
changing the name of the offense sends a message to the public:
think before you drink and get behind the wheel. When the
legislature lowers the standard and changes the name of the
offense, a person will have to decide whether he or she is under
the influence rather than intoxicated. He believes it is important
to send the message to the public that the legislature is serious
about stopping this offense from occurring.
CHAIRMAN TAYLOR asked at what level Representative Rokeberg
believes a person is under the influence.
REPRESENTATIVE ROKEBERG replied: "Mr. Chairman, we have also in the
bill the impairment provisions in state law. It is my understanding
that law enforcement officers, when they make the initial arrest,
many times charge under the impairment statute." Currently
"impairment" is defined as .05; it was lowered in the bill to .04.
He talked to municipal prosecutors in Anchorage who, on occasion,
bring criminal actions under the impairment offense. He reminded
committee members that .1 is the under the influence level so an
individual could be driving impaired at a .04 BAC under CSHB
4(FIN)am.
CHAIRMAN TAYLOR asked how the penalties differ for impairment and
under the influence.
MR. DEAN GUANELI, Assistant Attorney General, Department of Law
(DOL), said there is no difference.
CHAIRMAN TAYLOR maintained that by changing the definition within
the bill to "under the influence ...," the same penalties are
involved but the standard is lowered to .04.
REPRESENTATIVE ROKEBERG said the current law is .05; CSHB 4(FIN)am
would lower it to .04. He noted Chairman Taylor is correct in that
it is the per se level at .1 or .08. A person is still considered
under the influence under current law.
Number 784
SENATOR COWDERY asked for definitions of "inhalant" and "controlled
substance."
REPRESENTATIVE ROKEBERG said "controlled substance" is defined in
statute, which contains a list of certain drugs. He then said,
"Inhalant also, I believe, is defined here and there's other
pending legislation on that." He pointed out the definition was
included at the request of Representative Kapsner.
SENATOR COWDERY referred to Section 19, regarding evaluation, and
asked if an evaluation can be done if a person refuses to submit to
a breath test.
REPRESENTATIVE ROKEBERG said one reason the bill is so long is that
the implied consent and blood alcohol level statutes were
replicated in it. Regarding treatment, the bill refers to ASERP -
the Alcohol Screening and Evaluation Referral Program, an existing
program where initial screening occurs to evaluate whether the
individual needs additional alcohol abuse treatment. The charge
for that program is paid for by the defendant. CSHB 4(FIN)am
contains a provision that allows municipalities to charge the fee
for ASERP screening.
SENATOR THERRIAULT asked Representative Rokeberg to clarify the
comments he made about the .05 blood alcohol level.
REPRESENTATIVE ROKEBERG explained that the current impairment
statute has a .05 to .1 level.
SENATOR THERRIAULT asked if a person was driving erratically and
had a BAC of over .05, he or she could be cited while impaired.
REPRESENTATIVE ROKEBERG said that is correct.
SENATOR THERRIAULT asked if the fines are the same for impairment
and driving under the influence.
REPRESENTATIVE ROKEBERG said according to Mr. Guaneli that is
correct.
SENATOR THERRIAULT asked why the bill requires a vehicle to be
registered under a person's first, middle and last name.
REPRESENTATIVE ROKEBERG said the Division of Motor Vehicles
currently has two separate databases for licenses and
registrations. Those databases are not interactive because of the
ways the names are entered into them. By requiring the same name
format, the databases will be interactive.
SENATOR THERRIAULT asked for clarification of the vehicle
forfeiture provision.
REPRESENTATIVE ROKEBERG explained that under current law, a judge
may make a discretionary call as to whether to forfeit a vehicle on
the third offense. However, the municipalities of Anchorage and
Fairbanks have ordinances that mandate forfeiture on the second
offense, that has worked as an excellent deterrent. The original
version of the bill had mandatory, rather than discretionary,
forfeiture on the third offense. It also contained a provision
that allowed for either mandatory forfeiture or impoundment, which
was primarily aimed at smaller communities where no vendors are
available to take the vehicle and, for example, in a situation that
warranted impounding the vehicle for 20 days so that it could not
be used by the owner. However, some House members were concerned
about the mandatory aspect so "shall" was changed to "may" on the
House floor, making both discretionary. He felt the bill still
makes progress because it provides a discretionary forfeiture
and/or impoundment for the second offense. His intent was to
implement the mandatory standard used in Anchorage and Fairbanks
statewide.
SENATOR THERRIAULT asked about impoundment if a car is registered
to several people.
REPRESENTATIVE ROKEBERG said that current statute allows for any
co-owner or lien holder to assert his or her claim. During the
floor debate, House members discussed the possibility that a
defendant may have to sell the vehicle to pay off the co-owner or
lien holder. He explained that the rights of the co-owner would be
protected.
SENATOR THERRIAULT asked if the co-owners would have to pay a fine
or fee to get the vehicle back.
REPRESENTATIVE ROKEBERG said a fee would have to be paid to re-
register the car. He pointed out that is one of the provisions
with license plate confiscation.
SENATOR THERRIAULT asked about a vehicle that is towed away and
auctioned.
REPRESENTATIVE ROKEBERG said a statutory procedure is in existing
law and Anchorage and Fairbanks use a very simple civil procedure.
He informed the committee that the Chair of the Anchorage Assembly
has proposed an amendment that will allow a municipal government to
have tougher provisions for the offense of driving with a suspended
license by allowing for the forfeiture of vehicles. He asked for
the committee's support of the amendment.
CHAIRMAN TAYLOR took public testimony.
MS. CINDY CASHEN, representing Mothers Against Drunk Driving
(MADD), gave the following testimony.
The MADD chapter strongly endorses HB 4 and we have spent
a lot of time working on this with Representative
Rokeberg and his staff and it is our hope that this bill
will pass. Thank you.
Number 1187
MR. BLAIR MCCUNE, Deputy Director of the Alaska Public Defender
Agency, stated the House has done quite a bit of work on CSHB
4(FIN)am but he feels the need to point out some continuing
problems with the bill. Fines will increase dramatically, making
Alaska one of the harshest states in the nation. For a first time
offense, the mandatory minimum fine will increase from $250 to
$1500. The judge would have no discretion to lower that amount.
The fine for a third offense will increase from $1,000 to $4,000.
The public defender's agency is concerned about putting these fines
in place at such a high level. In addition, the license forfeiture
period for a felony DUI is permanent. It can be restored after 10
years. He believes it is important to make sure that drivers are
licensed and insured and fears that people whose license has been
revoked will be tempted to drive anyway. He feels the bill should
provide a way for people to get licensed and insured in a shorter
period of time.
MR. MCCUNE said CSHB 4(FIN)am increases the "look-back" provision
from five to 10 years for felony DUIs, which will add quite a bit
of time and expense for the public defender's agency.
MS. MARY MARSHBURN, Director of the Division of Motor Vehicles
(DMV), said, like Mr. McCune, DMV has been significantly involved
with the sponsor and the legislation since its drafting almost a
year ago. DMV supports lowering the BAC to .08 but DMV continues
to take issue with the vehicle registration revocation provisions.
A driver's license dictates whether an individual may drive any
vehicle. If a person is permitted to drive, it is the driver's
license that determines when and where he or she may drive. A
vehicle does not need to be registered in a specific person's name
for an individual to drive it. DMV does not believe that removing
a person's name from a vehicle registration for the period of the
driver's license revocation will have any appreciable effect on the
DUI problem. DMV does believe that dealing with re-registration
will be a chore for spouses, other family members, or co-owners who
need the vehicle. Likewise, she does not believe the work required
of DMV to implement that provision will be the most productive and
have the intended effect. DMV believes the funds in its fiscal
note should be directed to more effective methods of addressing
drunk driving, such as screening, treatment and rehabilitation, and
vehicle impoundment. She repeated DMV does not support inclusion
of the vehicle registration provision in the bill.
SENATOR THERRIAULT asked that Representative Rokeberg respond to
Ms. Marshburn's comments.
MS. JANET SEITZ, Chief of Staff to Representative Rokeberg, said
Ms. Marshburn was referring to Section 7: Seizure of Registration
Plates. Currently, when a person is stopped for a DUI offense, the
driver's license is seized and replaced by a temporary driver's
license during which time the person can file an appeal. Section 7
puts a similar scheme in place for the registration plates so that
license plates are seized and the driver is given a temporary
permit. The bill also says that DMV shall allow a co-owner to re-
register the vehicle. She noted it is a way to separate the
vehicle from the drunk driver to impress upon the inebriated person
that he or she should not be driving.
SENATOR THERRIAULT said he is not sure what will be gained for the
cost and, apparently, neither does DMV.
MS. SEITZ thought the offender would realize the seriousness of the
offense.
Number 1509
SENATOR THERRIAULT asked if the co-owner will have to pay the
registration fee under Section (7)(e) and the offender, using a
temporary license, can continue to drive that vehicle.
MS. SEITZ said the offender and still has the right to appeal, just
as he or she does when a driver's license is confiscated.
SENATOR THERRIAULT asked if a vehicle would be considered borrowed
if a husband drove a vehicle registered under the wife's name only.
MS. SEITZ said she believes that would be correct if his name is
not on the title.
SENATOR THERRIAULT asked if the seizure provision would kick in at
all for a borrowed vehicle.
MS. MARSHBURN said it does not apply to a borrowed vehicle.
CHAIRMAN TAYLOR surmised that if a person was convicted under CSHB
4(FIN)am and could not register a vehicle, he or she would only be
able to drive a borrowed vehicle.
MS. MARSHBURN agreed but noted it is the revocation of a driver's
license that determines whether a person can drive or not.
CHAIRMAN TAYLOR said the bill contains a provision that makes an
exception for a limited class of people, those being victims of
domestic violence. He asked how that will work.
MS. SEITZ explained that under current law, a person is not
supposed to knowingly authorize or permit another person to drive a
vehicle if that person does not have a valid license.
Representative Rokeberg added language on page 12, lines 11 through
14, at the request of people who felt the law needs to be
strengthened so that victims of domestic violence could not be
charged under current law as being an enabler if in fear of
domestic violence.
SENATOR DONLEY asked how that differs from any person who acts out
of fear of physical violence.
Number 1800
MS. SEITZ said the language regarding domestic violence was added
at the request of Lauree Hugonin.
SENATOR DONLEY expressed concern that the language is myopic
because acting under threat is an affirmative defense to any crime.
He questioned why the law should specify that the person can only
be threatened in a domestic violence situation.
REPRESENTATIVE ROKEBERG said Senator Donley is correct but that
provision will not lessen a person's common law right.
CHAIRMAN TAYLOR said existing law says one cannot loan a car to a
person without a valid license. He asked how the vehicle owner
would know whether a driver is licensed under existing law. He
asked if that immunity is also part of the forfeiture provision.
MS. SEITZ said the title of the current statute is Unlawful Use of
License Permitting Unauthorized Person to Drive. She thought the
"knowingly" standard would apply so a person would not be guilty if
he or she did not know the driver did not have a valid license.
CHAIRMAN TAYLOR indicated that with the modification in CSHB
4(FIN)am, a person could knowingly loan a vehicle to an unlicensed
driver but could "bail out" by claiming to be a victim of domestic
violence.
MS. SEITZ said that is correct.
CHAIRMAN TAYLOR informed members that an amendment [Amendment 1]
had been proposed that would allow municipalities to impose harsher
penalties than those provided in CSHB 4(FIN)am.
REPRESENTATIVE ROKEBERG noted the Anchorage Assembly passed a
resolution a few weeks ago that requests the legislature to
[indisc.] forfeiture.
SENATOR DONLEY maintained that the MOA was successfully dealing
with forfeiture.
REPRESENTATIVE ROKEBERG said the ordinance only applies to DUI
offenses; not to suspensions.
Number 2004
MS. SEITZ explained the MOA approved an ordinance on April 17. It
is considering a resolution that requests the legislature to amend
Title 28 to allow municipalities to increase penalties for driving
while a license is suspended, revoked, or cancelled and allow the
impound and forfeiture of vehicles used in the offense. She pointed
out implementation of the MOA's ordinance is pending a change to
state law.
SENATOR DONLEY said he was very skeptical when penalties were
lowered for driving without a license. He moved to adopt Amendment
1, which reads as follows:
AMENDMENT 1
TO: CSHB 4(FIN) am
Page 12, following line 14:
Insert a new bill section to read:
"* Sec. 22. AS 28.15.291 is amended by adding a new subsection
to read:
(d) Notwithstanding other provisions in this title, a
municipality may adopt an ordinance providing for the
impoundment or forfeiture of a motor vehicle involved in the
commission of an offense described under this section or an
ordinance with elements substantially similar to an offense
described under this section. An ordinance adopted under this
subsection is not required to be consistent with this title or
regulations adopted under this title."
Renumber the following bill sections accordingly.
SENATOR THERRIAULT expressed concern that the phrase "not required
to be consistent" was used in the last line of Amendment 1 because
it could be interpreted to mean less stringent.
CHAIRMAN TAYLOR noted he shares the same concern.
SENATOR THERRIAULT said he favors allowing municipalities to impose
stricter provisions, but he does not favor allowing more lenient
provisions.
SENATOR DONLEY agreed with Senator Therriault in that the state law
should be the floor and that local governments be given the
discretion to go farther.
CHAIRMAN TAYLOR suggested striking the last sentence from Amendment
1.
REPRESENTATIVE ROKEBERG said he agrees with Senator Therriault's
concern.
SENATOR DONLEY moved a conceptual amendment to Amendment 1 to allow
local governments to adopt standards that are the same or more
stringent than the state standards, but not less.
CHAIRMAN TAYLOR announced that with no objection, Amendment 1 as
amended was adopted.
SENATOR DONLEY asked if the House examined the penalties for
driving without a license. He felt that is a problem with the
current law because the penalty for driving without a license has
been reduced.
REPRESENTATIVE ROKEBERG said that subject was talked about in
general terms but was not addressed in the bill as he was trying to
keep the focus of the bill narrow.
CHAIRMAN TAYLOR asked what rehabilitation provisions are contained
within the bill.
REPRESENTATIVE ROKEBERG replied the primary one is the long term
mandatory treatment. In addition, the fiscal notes expand the
ASERP or the initial assessment, as well as other treatment
elements that normally occur for those defendants found to need
additional treatment. The most innovative part makes treatment for
long term, incarcerated substance abusers mandatory.
CHAIRMAN TAYLOR asked if, in some instances, mandatory treatment
could last for as long as one year.
REPRESENTATIVE ROKEBERG said it could; the Department of
Corrections will have to make a judgment call about the timing and
length of treatment. The problem with voluntary treatment is that
some inmates succeed with treatment but others do not even attempt
it.
CHAIRMAN TAYLOR noted that not everyone incarcerated under CSHB
4(FIN)am will be serving lengthy terms.
REPRESENTATIVE ROKEBERG said he was trying to focus on the habitual
drunk driver.
CHAIRMAN TAYLOR said with a ten-year look-back, a person could be
arrested with a .04 BAC who had a DUI nine years prior, and that
person would lose his or her license and car for 10 years.
REPRESENTATIVE ROKEBERG clarified that is possible on a third
offense.
CHAIRMAN TAYLOR asked if the ten years is a minimum mandatory
sentence.
REPRESENTATIVE ROKEBERG said in 1995 the legislature changed the
third offense to the felony level. That has not been changed in
CSHB 4(FIN)am, but the anomaly that happened with the five-year
look-back was changed; i.e., a third offense within the fifth year
was a felony, but a third offense in the sixth year was a
misdemeanor. He felt that was unfair and, in addition, he wanted to
clarify that a third offense is a felony.
CHAIRMAN TAYLOR said hopefully the vast majority of people affected
by this bill will be those with a high rate of recidivism.
REPRESENTATIVE ROKEBERG pointed out that over 73 percent of first
offenders do not re-offend.
CHAIRMAN TAYLOR asked within what time period those 73 percent were
measured.
REPRESENTATIVE ROKEBERG said within three years.
CHAIRMAN TAYLOR asked what the percentage is over a ten-year period
and expressed concern that it is unlikely that such records are
available.
TAPE 01-31, SIDE B
CHAIRMAN TAYLOR said maybe 30 to 40 percent no longer drink at all
but they will not be able to work for 10 years if they cannot
drive.
REPRESENTATIVE ROKEBERG suspected the percentage would not be very
high. He noted the numbers start falling off to less than 10
percent for major habitual offenders.
CHAIRMAN TAYLOR asked if less than 10 percent of habitual offenders
will be "turned around" with treatment programs.
REPRESENTATIVE ROKEBERG said it is the opposite.
CHAIRMAN TAYLOR said that is why he asked about the rehabilitation
program. He asked if Representative Rokeberg is assuming that some
of these people will not drink anymore.
REPRESENTATIVE ROKEBERG said, "Absolutely, that's why the whole
package, particularly with the therapeutic courts - the other
provision we have there - we believe that we will make progress in
rehabilitation and treatment."
CHAIRMAN TAYLOR asked how the rehabilitated individuals will be
treated in contrast to the habitual offenders that continue to
drink and what benefit the rehabilitated individual will get from
complying. He said the loss of a person's license often affects
that person's ability to earn a living.
REPRESENTATIVE ROKEBERG agreed but suggested the person could get a
temporary license to get to and from work.
CHAIRMAN TAYLOR disagreed and said CSHB 4(FIN)am does not provide
for a temporary license for that 10-year period.
SENATOR THERRIAULT asked if the bill has provisions with regard to
driving with a revoked license that trigger other suspensions for
longer periods of time or whether everything is tied to a DUI
conviction.
MS. SEITZ said the latter.
SENATOR DONLEY said his concern about Section 21 is that the court
has standards for an affirmative defense if a person acts out of
fear. He believes the statute sets out the tests for that
standard, yet Section 21 doesn't seem to have any trigger tests at
all. It appears that anyone could assert that they acted in fear
of domestic violence and would automatically be exempted from the
provisions of the bill. He asked Mr. Guaneli to comment.
MR. GUANELI said Senator Donley's characterization of Section 21 is
accurate. Under existing statute, a person who is forced to commit
a crime in order to avoid a greater harm has an affirmative
defense, but the person must present some evidence. The Network on
Domestic Violence and Sexual Assault did not want the domestic
violence victim to even be charged and have to provide evidence.
SENATOR DONLEY said his concern is that many of these situations
will involve spouses who use the same vehicle. CSHB 4(FIN)am seems
set up to allow abuse of the law, whereas if one was required to
follow the normal law [affirmative defense], some sort of measure
is involved.
MR. GUANELI agreed that is a possibility. He said he would prefer
to rely on the existing law which involves necessity and duress.
CHAIRMAN TAYLOR asked Representative Rokeberg to clarify his
statement that he lost a vote on the floor on a provision he was
trying to change.
REPRESENTATIVE ROKEBERG said that provision pertained to mandatory
versus discretionary forfeiture. He said the floor vote changed it
back to discretionary.
SENATOR THERRIAULT asked for an example of a case in which a
person's vehicle would be impounded or sold.
REPRESENTATIVE ROKEBERG said, excluding an offense in Anchorage and
Fairbanks, under existing law, law enforcement officials will
impound the vehicle initially when a person is arrested. CSHB
4(FIN)am will provide for the confiscation of plates and the
release of the vehicle with a temporary permit. After adjudication
and the finding, the judge could require confiscation if the
offense is a second or third.
SENATOR THERRIAULT asked if the vehicle has to be registered in the
offender's name.
REPRESENTATIVE ROKEBERG said he believes the offender has to have
an ownership interest in the vehicle.
SENATOR THERRIAULT said for a first offense, the spouse would have
to get the vehicle re-registered in his or her name, thereafter,
the offender would be driving a borrowed car. He asked if the
judge would have the latitude to seize the vehicle.
REPRESENTATIVE ROKEBERG said he doesn't believe so, which is one
reason he didn't want the civil procedures used in Anchorage and
Fairbanks. In Anchorage and Fairbanks they use a civil action.
SENATOR THERRIAULT's next comment was inaudible.
REPRESENTATIVE ROKEBERG said under current statute a person has the
right to assert ownership.
CHAIRMAN TAYLOR asked Representative Rokeberg if he has statistical
information from the District Attorney's Office or the court system
on the actual days of sentence being given on average by the courts
in the state for a first, second, and third offense.
REPRESENTATIVE ROKEBERG said he has not seen the actual number of
days, but he found the prosecuting community to be frustrated that
the court system has tended to default to the lowest minimum
sentence it can impose.
CHAIRMAN TAYLOR noted, "Well, the previous low minimums were 120 -
you've gone up to 180, 240 - you've gone to 360, 360 was the
minimum before - you've now gone to 440." He asked whether
Representative Rokeberg had any information to show that sentencing
was occurring at those levels or below.
REPRESENTATIVE ROKEBERG said he has a sentencing report but he
could not recollect the amount of time.
CHAIRMAN TAYLOR said Representative Rokeberg also came up with an
extensive list for seven different standards for first, second,
third, fourth, and more offenses. He pointed out the existing law
requires not less than 60, 120, 240, and 360 days for those
offenses. He asked Representative Rokeberg if he found that the
court system was not increasing the fines.
REPRESENTATIVE ROKEBERG explained that one reason for stepped up
fines in the bill was that they were recommended by the DUI task
force in Anchorage. Also, during substantial discussions in
committees, there was a feeling that the recommendation of the
confiscation of a permanent fund dividend would be a good
deterrent. However, because of priority lists for permanent fund
dividends, the committee decided to use an equivalent amount or
close to it to catch people's attention at the first offense.
Members decided on $1500 for a first offense and raised the others
from there.
CHAIRMAN TAYLOR said he asked because he wondered if Representative
Rokeberg had information showing the courts were sentencing at
lower amounts than that or at such low amounts he felt it was
important to impose the additional mandatory minimums.
REPRESENTATIVE ROKEBERG said that is from anecdotal evidence he
received from prosecutors. He noted, "There was a regular time,
particularly because of using [indisc.] credits for time served and
defaulting to the minimum allowable, that's what they would use."
He also pointed out that in response to a comment made by Mr.
McCune, the public defender, a provision was added to the bill that
allows a judge to reduce the fine by half.
SENATOR DONLEY referred to Section 21, and pointed out that AS
18.66.990 is the definition of domestic violence that contains a
list of the elements of domestic violence, one is making repeated
phone calls at extremely inconvenient hours. He said if a person
one formerly dated was inebriated and called at an inconvenient
hour and asked to borrow a car, the loaner would have a foolproof
defense for doing so. He questioned whether that is good public
policy.
REPRESENTATIVE ROKEBERG responded:
Let me just explain what happened there. We had - this
is the enabling section of the law. It's already
existing law. There's a recommendation of the DUI task
force that we make that tougher so the original draft of
the bill had a tougher section in here. What happened
is, the committee didn't like that and then the domestic
violence people came in before the committee and asked
that we adopt this. So we did a complete flip-flop
there. It was like one of those - a little bit of a last
minute thing so, Mr. Chairman, I'm not married to that
and I agree with [Senator] Donley if it's not appropriate
at all...."
Number 1711
SENATOR DONLEY moved to delete Section 21 [Amendment 2].
CHAIRMAN TAYLOR announced that with no objection, Amendment 2 was
adopted.
REPRESENTATIVE ROKEBERG clarified that the standard will not be
lowered by Amendment 2 because the common law defense remains.
SENATOR THERRIAULT said that the proponents of Section 21 will have
an opportunity to provide more balanced language and present it to
the Senate Finance Committee.
SENATOR DONLEY moved SCS CSHB 4(JUD) from committee with individual
recommendations.
SENATOR THERRIAULT objected and asked for the total amount of all
fiscal notes.
REPRESENTATIVE ROKEBERG said they amount to about $3.5 million with
the five percent assumption that pertains to the .08 BAC. He
pointed out that is the net amount because the bill will generate
revenue.
CHAIRMAN TAYLOR stated with no objection, SCS CSHB 4(JUD) moves
from committee with individual recommendations.
CHAIRMAN TAYLOR announced that HB 106 and HB 184 would be heard the
next day. The committee took up HB 132.
CSHB 132(2nd RLS)efd am-ALCOHOL:LOCAL OPTION/DWI/LICENSING
REPRESENTATIVE ROKEBERG presented the bill on behalf of the House
Judiciary Committee. He explained that CSHB 132(2nd RLS)efd am
gives the Alcohol Beverage Control (ABC) Board permission to
require fingerprints of applicants for liquor license applications
and makes provisions for cutting down on the bootlegging activities
by restricting the amount of presumed alcohol in the hard liquor
form from 12 to 6 liters of hard alcohol that can be brought into a
"damp" area. It also increases the penalty for mailing or shipping
liquor to dry areas to include an attempt to import liquor into a
"damp" area. The final change in the bootlegging part of the bill
is the establishment of delivery sites for the receipt of and the
importation of alcohol beverages into a "damp" community.
Currently, the city of Barrow operates one quite successfully.
This bill will allow the state to operate them in Bethel and
Kotzebue, part and parcel with a $1.5 million federal grant to cut
down on bootlegging. In addition, because of timing issues, the
House decided to add the .08 blood alcohol level (BAC) provision
stand alone and the look-back from CSHB 4(FIN)am. He offered to
answer questions.
SENATOR THERRIAULT asked about the fiscal impact of adding the .08
BAC provision to the bill.
REPRESENTATIVE ROKEBERG thought the amount was $197,000. He
suggested directing the question to Mr. Guaneli.
CHAIRMAN TAYLOR said he noted that the phrase, "within 10 years
preceding the date of a present offense" was deleted from AS
28.35.030(o) on page 10. He asked if that refers to a driving
while under the influence (DUI) offense.
REPRESENTATIVE ROKEBERG said, "No, that's part of the look-back,
Mr. Chairman."
CHAIRMAN TAYLOR asked if, because the 10 years was deleted, the
look back provision would apply forever.
REPRESENTATIVE ROKEBERG said it contains the language from HB 4 so
he would have to defer to the drafter for an answer. He then said
it is a phase in of the look back.
MS. SEITZ explained the phrase, "within 10 years preceding the date
of the present offense" because, as Representative Rokeberg says,
we are phasing in a ten-year look back with a date certain of
January 1, 1996.
CHAIRMAN TAYLOR said that is clarified in Section 14 on page 11.
REPRESENTATIVE ROKEBERG said that helps with the fiscal note.
SENATOR DONLEY pointed out the Department of Corrections' fiscal
note does not specify the fund source. He asked that information
be provided before the bill is heard by the Senate Finance
Committee.
CHAIRMAN TAYLOR referred to Section 22(2) on page 12 and asked if
that is the impairment section as it drops the .05 BAC to 04.
REPRESENTATIVE ROKEBERG said there was a spread between .05 and .1.
CHAIRMAN TAYLOR said he didn't note any rewriting of the entire
code as was done with HB 4, for example changing the word
"intoxicated" to "under the influence."
REPRESENTATIVE ROKEBERG replied, "This is the light version."
Number 1198
MR. DEAN GUANELI, Assistant Attorney General, Department of Law
(DOL), said the Administration strongly supports HB 132. This bill
accomplishes many of the goals that DOL set out to accomplish, the
.08 BAC being one of the goals. He said regarding Chairman
Taylor's question about deleting the 10 year look back language,
that particular definition applies to second offenders. To be
considered a second offender under current law, the person would
have had to committed the first offense within 10 years. The new
language removes the 10 year limit.
MR. GUANELI said he believes this bill makes meaningful changes to
the laws involving alcohol in rural Alaska. It cuts in half the
allowable limit that people can possess in "damp" areas, places
where the sale of alcohol is prohibited but importation is allowed.
Right now, a person can possess 12 liters of hard liquor, 24 liters
of wine, plus 12 gallons of beer. The profit margin in bootlegging
is in hard liquor so cutting that presumptive level in half is an
important step, an act was recommended by the Criminal Justice
Assessment Commission.
CHAIRMAN TAYLOR asked if the presumptive level is being cut in half
for the second offender.
MR. GUANELI clarified that it pertains to areas where alcohol is
allowed to be imported but not sold. He noted only the amount of
hard liquor was cut in half because there was some concern on the
House side that a person should be allowed to possess the current
limit.
MR. GUANELI said DOL believes it is important to change some
definitions so that anyone who attempts to send liquor to a "damp"
area and is intercepted would be treated as if the liquor had
actually arrived, a class C felony. Under current law, if the
liquor doesn't arrive, the sender can only be charged with an
attempt, a class A misdemeanor. DOL does not believe that the
charge should be less because good police work stopped the
shipment.
MR. GUANELI said after receiving a $1.4 million grant for alcohol
interdiction and reviewing the issue further, he feels it is
appropriate to go one step further. At present, a municipality in
a damp area can designate a site where all of the alcohol shipped
to the area must go so that the municipality can guarantee package
stores are not shipping more than the monthly legal amount.
However, a bootlegger could place orders from multiple stores.
Barrow has designated a site and put out a contract. All liquor is
funneled into that area, where it and the recipient's
identification are checked. That procedure has cut back on the
amount of bootlegged liquor in Barrow. In some areas of the state,
communities do not have the money or political will to establish a
similar procedure so the question is, why shouldn't the state? The
state spends millions of dollars to counteract the effects of
alcohol in many places in rural Alaska. CSHB 132(2nd RLS)efd am
provides the statutory authority that allows the state to operate a
delivery site.
CHAIRMAN TAYLOR commented a community would have to vote to be
either damp or dry for bootlegging to occur. He asked if the state
would be spending money to run a checkpoint for those people who
are shipping liquor into their community.
MR. GUANELI said that is the basic idea. He clarified that it is
illegal to ship any alcohol into dry communities so this provision
would only apply to damp communities.
CHAIRMAN TAYLOR asked if a bootlegger would ship to that checkpoint
voluntarily.
MR. GUANELI said that is correct. Right now any orders shipped
from a package store must contain a label specifying what and the
amount of the product. In Barrow, someone checks the labels to
make sure the recipient hasn't exceeded his or her monthly
allowance.
SENATOR DONLEY asked what the public policy reason is to set the
limits in statute.
Number 777
MR. GUANELI said when sale is banned but possession and importation
is allowed, some level had to be established to prevent people from
having huge storehouses from which to sell. Recognizing that
bootlegging did exist in those areas, those limits were set. The
limits were designed to provide an amount to allow for social
drinking but not too much to sell. The feeling is that the amount
of hard liquor is too much. This has existed in state law for a
number of years.
SENATOR DONLEY thought the limits were set quite high and that
bootlegging could take place within those parameters.
MR. GUANELI agreed and said that is why the amount of hard liquor
was cut in half.
CHAIRMAN TAYLOR said he appreciates the efforts behind this
legislation and hopes it work. He expressed concern that the bill
is based on voluntary activities.
MR. GUANELI said if someone circumvents the delivery site, the
offense would be a misdemeanor. He noted he has discussed this
measure with Representatives Kapsner and Joule. They are excited
about the idea and feel it can't hurt.
CHAIRMAN TAYLOR wondered how tough things would have to get in
Juneau before a checkpoint program could be imposed.
SENATOR DONLEY said these communities have had a popular vote to
impose such a program.
CHAIRMAN TAYLOR said he finds it fascinating that the committee can
so easily sit back and consider these things as if it is them, not
us. He announced that he would hold CSHB 132(2nd RLS)efd am in
committee until tomorrow. He assured participants he was only
holding the bill for the purpose of accommodating others who are
interested in amending it. He then took up HB 179.
CSHB 179(FIN)-UNDERAGE DRINKING & DRUG OFFENSES
REPRESENTATIVE NORMAN ROKEBERG presented CSHB 179(FIN) on behalf of
the House Judiciary Committee. In December, the Alaska Supreme
Court ruled on the state versus Neidemeyer (ph) case making
structurally inoperative the "Use it and lose it" law. The court
found that revoking a minor's driver's license without a trial
violated the minor's constitutional right of due process.
Consequently, the House Judiciary Committee worked with the
Administration to find a way to re-criminalize minor possession and
consumption. The prosecutors and law enforcement are doing little
or nothing to enforce the law because their hands are tied. Right
now a maximum fine of $300 is imposed. He said the Legislature
needs to send a message to the youth of this state that they should
wait until they are of age before using alcohol responsibly.
Working with the Administration, the House Judiciary Committee
designed a new penalty scheme which provides for a violation on the
first two offenses. The fine amounts range from $200 to $600,
which can be suspended. It also mandates attendance at an alcohol
education program and, for a first offense, allows the use of a
community diversion panel, which could be a youth court, if
approved by the court. For a second offense, the maximum fine is
$1,000 (up to one-half may be suspended), 48 hours of community
service, revocation of the driver's license for three months. A
third offense rises to a class B misdemeanor with the imposition of
96 hours of community service and revocation of the driver's
license for 6 months. A person under 18 years of age is referred
to juvenile court, if over, to district court.
TAPE 01-32, SIDE B
CHAIRMAN TAYLOR asked why community service is part of the sentence
for offenders over the age of 18 if they are old enough to go to
jail.
REPRESENTATIVE ROKEBERG said, "Well, I believe Mr. Chairman, it is
a class B misdemeanor."
CHAIRMAN TAYLOR asked if the House Judiciary Committee came up with
a habitual minor consuming standard and if that is new.
REPRESENTATIVE ROKEBERG said he believes it is new and that it also
provides for a juvenile alcohol safety action program (ASAP).
CHAIRMAN TAYLOR asked if it will provide for treatment.
REPRESENTATIVE ROKEBERG said the bill includes a pilot treatment
program that specifies the communities of Ketchikan, Fairbanks,
Kotzebue and Juneau as recipients of the treatment money at this
time.
CHAIRMAN TAYLOR asked a representative from the Department of
Health and Social Services (DHSS) to testify.
MR. ELMER LINDSTROM, special assistant to Commissioner Perdue,
DHSS, said he appreciates the opportunity to work with
Representative Rokeberg on this bill. The genesis of HB 179 began
last summer when they met with representatives from the court
system, law enforcement, prosecutors and the public defender. The
bill contains elements that DHSS believed should come forward even
before the Alaska Supreme Court ruled. From DHSS's perspective,
monitoring is key. ASAP serves only adults and the court system
wants and needs equivalent assistance for juveniles. The court
system feels it has been unable to have any kind of meaningful
intervention with juveniles. If the "Use it and lose it" law did
nothing else, it provided good data. That data revealed juveniles
who were 10, 12, or 15-time offenders. Under current law, the
state's response for the 15th offense is the same as it is for the
first offense so the concept of graduated sanctions was one that
DHSS felt had merit. Its goal is to get the monitoring and provide
treatment to intervene early.
CHAIRMAN TAYLOR asked if the state has any treatment facilities for
juveniles.
MR. LINDSTROM said treatment capacity for juveniles in Alaska is
very limited, either in-patient or out-patient. DHSS's original
fiscal note on this bill requested in excess of $1 million for
treatment in all places it wanted to put juvenile ASAP sites. The
House Finance Committee cut that and put in language for pilot
sites. He said he does not want anyone to believe that even with
passage of this bill and its attached fiscal note, there will be
adequate facilities for youth in the state.
CHAIRMAN TAYLOR said,
In fact, what we've been doing with the court system
until the decision came down from the Supreme Court, is
we were fining kids until we worked our way through their
permanent fund dividend check. So, at $300 a pass, it
took you about seven times and you got to drink for free.
So, number 8, 9, 10, 11, 12, 13 that year, those were
free because you'd already burned up your permanent fund
dividend check. That's literally how they work it in the
court. They'd come in and give them $300 civil fine -
they'd take it out of their permanent fund dividend check
...."
He said he appreciates this legislations and said he would
personally go a little tougher on the state as far as providing
treatment facilities.
Number 470
MR. ROBERT BUTTCANE, Division of Juvenile Justice, DHSS, informed
the committee that his division has a number of treatment programs
in the state for adolescents, mostly outpatient programs. The
amount in the fiscal note will increase some of that capacity but
HB 179 will hopefully provide a scheme to identify chronic abusers
of alcohol earlier so that early intervention can take place. DHSS
will be able to provide additional supervision and support to the
court system to try to change behavior. If that doesn't happen,
the delinquency system will kick in on the third offense and the
forces of the Superior Court, juvenile probation officers and
family members will attempt more intrusive and effective
interventions. He believes it will be a lot better than what
currently exists.
CHAIRMAN TAYLOR said he is glad the bill has a pilot program aspect
to it so that the state can get some hard numbers to determine how
it works and how to expand it. He then asked Mr. Guaneli what
happened to the minors who lost their drivers' licenses for decades
as a result of multiple offenses under the "Use it lose it law."
MR. DEAN GUANELI, Assistant Attorney General, Department of Law,
said he believes that provision of the law was changed recently so
that those revocations will run concurrently rather than
consecutively.
There being no further questions or testimony, SENATOR DONLEY moved
CSHB 179(FIN)am from committee with individual recommendations.
CHAIRMAN TAYLOR announced that with no objections, the motion
carried.
SB 177-DRIVING WHILE INTOXICATED:BAC LEVEL/FINES
CHAIRMAN TAYLOR announced participants that the committee has held
two hearings on SB 177, sponsored by Senator Ward.
SENATOR DONLEY said although he likes the substance of the bill, he
is still concerned about the fiscal note. He then moved SB 177
from committee with individual recommendations.
CHAIRMAN TAYLOR announced that with no objection, SB 177 moved from
committee with individual recommendations.
HB 152-BREWPUB LICENSES
The committee took up HB 152.
MR. KEVIN HAND, staff to Representative Halcro, sponsor of HB 152,
explained that HB 152 is a stop gap measure to ensure the
unencumbered operation of a relatively new, highly successful
industry in Alaska. HB 152 provides a band-aid solution involving
a one-year sunset clause that will enable brew pubs to continue
their operation for a full year, rather than having to shut down
their operation once they reached the production cap put in place.
The bill has a sunset date is June 30, 2002; it raises the
production cap on brew pubs to 150,000 gallons, of which no more
than 75,000 gallons can be sold retail through their in-house
establishments and no more than 75,000 gallons can be sold to a
wholesaler. The brew pub industry has fostered employment in the
state, it has made millions of dollars in capital investments, and
it provides diversification of the economy. The idea behind the
sunset clause is to allow a one year period for everyone to come to
the table, including the industry groups to foster a long solution.
He informed the committee that Representative Halcro has received
thousands of contacts from patrons of these establishments
statewide who would like to see the continued operation of them.
He pointed out the net effect of this production cap in place is
that it will leave the brew pub operator with a few choices: the
operator can cease the operation upon reaching the production cap
and no longer sell beer or bring in another brand until the end of
the calendar year; contract brew to a brewery, which can be done
without the cap, or contract brew to a company out-of-state; or
move the entire facility to the Lower 48 where there is no
production cap, but the operator will lose the moniker of a
handcrafted Alaskan beer. In fact, the production cap is a
disincentive for Alaskan employment and capital investment in
Alaska.
SENATOR COWDERY noted the downtown pub is an asset to the downtown
area. He questioned whether any other establishments are limited
to what they can sell, for example, imports.
MR. HAND said regarding the alcohol industry, there is no limit to
how much Anheuser-Bush or Coors can ship into Alaska and sell and
there is no limit to how much a package store or brewery, such as
the Alaskan Brewery, can sell of any product.
SENATOR COWDERY asked when the limit was established whether it
would be adjusted in the future.
MR. HAND said that brings up a very valid point because when the
brew pubs first came on to the scene in Alaska, for example the
Moose's Tooth, the law allowed a brewery to also own a restaurant-
eating place license. At that time, there was no limit on the
amount that could be brewed. That law was changed and the cap was
put in place while they were in operation in 1996. The Moose's
Tooth's license became illegal and had to be grandfathered in.
SENATOR DONLEY asked if the increase is temporary for one year.
MR. HAND said that is correct; it is a temporary fix so that all
parties have time to come up with a long term fix.
MR. MATT JONES, co-owner of the Moose's Tooth Brewing Company,
urged committee members to support HB 152. He informed the
committee that when he and his partner planned their business in
1995, the Moose's Tooth legally obtained both a restaurant license
and a brewery license. At that time, when they opened in 1996,
they could produce and sell an unlimited amount of beer in both the
wholesale and retail sectors, as well as own as many restaurant
licenses as they desired. After less than six months of operation,
the 1996 Legislature passed a statute prohibiting the simultaneous
ownership of a restaurant and brewery license.
His business was never contacted during that session as to the
effect that statutory change would have on the business. The
Moose's Tooth was told by the ABC Board that the law had changed
and that their license was in a grandfather status. Right now, the
Moose's Tooth is asking to be able to brew beer to meet the market
demand for its product, as allowed in 1996. Bar owners often
complain that the Moose's Tooth has an unfair market advantage, but
he pointed out that bar owners can also add a brewing facility to
their bar to become a brew pub. The only thing stopping them is
the investment in that infrastructure. In many states brew pubs
can wholesale and retail. The state of Oregon has a free market
approach, in which brew pubs can wholesale, retail, own a
distillery, winery or restaurant and bar and they can brew to meet
the market demands. That approach is the reason Oregon is now
internationally recognized as one of the most flourishing brewing
industries in the world. His final point was that of the beer
produced in Alaska, the microbrewed sector accounts for about 4
percent. Of that 4 percent, the Alaskan Brewery makes about 2 to 3
percent; the remainder is divvied up amongst 10 other breweries.
He does not believe his business is about to monopolize the market.
He noted that he would like to be able to brew to the demand that
he built his brewery for in 1996. Doubling the production cap
under HB 152 will allow him to get closer to that and to meet with
other parties to find a permanent solution.
MR. CHUCK FREESE, a principal in the Great Bear Brewing Company,
stated support for HB 152. He said Mr. Jones summarized the
benefits of HB 152.
SENATOR COWDERY asked Mr. Freese if his primary business is a
restaurant and, in a brew pub business, whether arrests of
intoxicated people occur more often than with a restaurant.
MR. FREESE said his business is just getting started and does about
half restaurant business and half brew pub business. His business
closes at 1:00 a.m. on Friday and Saturday nights. They have never
had an incident with the police. He offered to forward a letter he
has received from the Chamber of Commerce. He believes the
community is very supportive of his business and families comprise
a big part of his business.
CHAIRMAN TAYLOR noted he would take up HB 132 again tomorrow.
HB 181-COMMUNITY PROPERTY/OBLIGATIONS OF SPOUSES
REPRESENTATIVE LISA MURKOWSKI, sponsor of HB 181, explained that
the bill fills in gaps in Alaska's Community Property Act, passed
in 1998. HB 181 is the result of discussions with and suggestions
from one of her constituents, Dave Chafftel, a trust attorney who
is very involved with the trust section of the Alaska Bar
Association. Four areas are at issue. The first is a creditor
rights issue with regard to obligations incurred by a spouse.
Those obligations can only be satisfied from the spouse's non-
community property. The creditor of a debtor spouse can only reach
the separate property of the debtor spouse and that spouse's
jointly held property. Two other issues pertain to life insurance
and specify that one can designate a trust itself as a beneficiary.
HB 181 clarifies the sources of funds that can be used to purchase
the life insurance and expand the category. At present it only
pertains to family members but often one wants to extend it to
grandchildren. The final area relates to the division of property.
When community property was discussed in 1998, division of property
upon death was not covered. HB 181 specifies that if one has
different property items, they can be allocated differently as long
as the surviving spouse receives half of the total value.
MR. DAVE CHAFFTEL, an Anchorage attorney, said he is one of a group
of estate planning attorneys who have helped with some of the
technical matters of drafting estate planning legislation. The
group has found that the community property act that the
legislature passed in 1998 has been very popular. Most of his
clients opt to designate some or all of their property as community
property so the bill has been very successful and beneficial to
Alaskans. He said:
We originally adopted the Uniform Marital Property Act,
which was a uniform act that provided a basic framework
for community property but has a number of gaps, as a lot
of these model acts do, and they need to be designed for
each state. That's what this bill is doing - it's
filling in some of the gaps in a number of areas that we
have noticed either are ambiguous or need resolution for
Alaskans.
CHAIRMAN TAYLOR thanked Mr. Chafftel for his efforts on this
legislation. He said that he plans to hold a hearing next session
for the specific purpose of learning what has happened with the
trust modifications made by the legislature. He pointed out that a
lot of local people owned large pieces of land, homes and other
things and would have been wiped out by taxes if it hadn't been for
some unique properties provided by Alaska that other states don't
have.
SENATOR DONLEY moved HB 181 from committee with individual
recommendations and its accompanying zero fiscal note.
CHAIRMAN TAYLOR announced that with no objection, HB 181 moved from
committee.
SB 191-JOINT AVIATION INSURANCE ARRANGEMENTS
CHAIRMAN TAYLOR informed participants that the committee has
already held several hearings on this legislation. He proposed
Amendment 1, and explained that it provides further clarification
from the Division of Insurance.
SENATOR DONLEY moved to adopt Amendment 1, which reads as follows.
AMENDMENT 1
TO: SB 191
Page 2, line 9
Insert a new subsection (b) and re-letter accordingly:
21.77.020 (b) Before the air carrier signs the cooperative
agreement, the Joint Aviation Insurance Arrangement shall
notify the air carrier in writing that the Joint Aviation
Insurance Arrangement is not licensed in this state, is not
subject to this state's supervision, and in the event of the
insolvency of the Joint Aviation Insurance Arrangement, losses
will not be covered under AS 21.80 (Alaska Insurance Guaranty
Association Act).
CHAIRMAN TAYLOR announced that with no objection, the motion
carried.
SENATOR ELLIS asked for clarification.
CHAIRMAN TAYLOR said Amendment 1 provides additional sidebars
because, "Everybody's worried about these guys running off and
being too thinly financed."
SENATOR ELLIS proposed Amendment 2, which reads as follows.
AMENDMENT 2
TO: SB 191
Page 2, lines 5-9:
Delete all material and insert:
"Sec. 21.77.020. Annual report. By October 1 of each
year, the administrator of a joint insurance"
SENATOR ELLIS said his intent is to require an annual report and
that requiring annual reports seem to be the prevailing attitude on
the floor today. He noted Amendment 2 would require this structure
to be under the review of the Division of Insurance.
CHAIRMAN TAYLOR said he has no problem requiring an annual report
but he has a problem with the first part. He therefore objected to
Amendment 2 and explained:
... what it does is today it's a joint insurance
arrangement, which is not under the regulation of the
Division of Insurance, like the pools are with the
schools, and the amendment would put them back under the
division and require an annual report. And I'll have to
object to that one.
SENATOR ELLIS noted the committee heard testimony from the director
of the Division of Insurance that it would be a good idea because
of the risk involved. He said he supports what Chairman Taylor is
trying to do but he would feel more comfortable if the Division of
Insurance had oversight.
CHAIRMAN TAYLOR stated:
I appreciated that. My frustration is if that were the
case, they could just form a reciprocal at this time and
there's been no movement towards that and part of the
difficulty is the extensive reporting requirements and
auditing requirements, much of which we've not put back
into the bill or a good portion of it we have, which
further will impinge on them a bit. Actually, the JIAs
that are working on the municipalities in the school
districts have basically a one paragraph authorization
and they have done the things they are doing because it's
good business to do it and not because they were required
to.
A roll call vote was taken. The motion to adopt Amendment 2 failed
with Senators Cowdery, Therriault, Donley and Taylor voting
against, and Senator Ellis voting in favor.
SENATOR ELLIS moved to adopt Amendment 3, which reads as follows:
AMENDMENT 3
TO: SB 191
Page 3, line 3l:
Delete "$250,000"
Insert "$500,000"
He said the doubled amount would provide a more adequate level of
capitalization. The director of the Division of Insurance testified
that $250,000 was inadequate.
CHAIRMAN TAYLOR said he believes Amendment 3 is fair and he has no
objection to it. With no other objection to Amendment 3, it was
adopted.
SENATOR DONLEY moved CSSB 191(JUD) from committee with individual
recommendations. There being no objection, the motion carried.
CHAIRMAN TAYLOR announced, regarding HB 152, that it is his intent
to let the parties find a solution and insert it into the other
bill.
SENATOR ELLIS said that bill represents everything the legislature
says it stands for, regarding economic development in Alaska so he
hopes the Chairman can make that happen.
CHAIRMAN TAYLOR announced that the committee would take up HB 106
and HB 184 the following day, and that he hopes to hold the meeting
at 1:30 p.m. or while the full Senate takes a recess. He then
adjourned the meeting at 11:13 p.m.
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