Legislature(1999 - 2000)
05/11/1999 01:44 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
May 11, 1999
1:44 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator Johnny Ellis
MEMBERS ABSENT
Senator John Torgerson
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 151(JUD) am
"An Act relating to revocation and reinstatement of the driver's
license of a person at least 14 but not yet 21 years of age."
-HEARD AND HELD
CS FOR HOUSE BILL NO. 214(JUD)
"An Act relating to litigation involving correctional facilities;
and amending Rules 59(f), 60(b), 62, and 65, Alaska Rules of Civil
Procedure."
-MOVED CSHB 214(JUD) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
HB 151 - No previous Senate action.
HB 214 - See Judiciary minutes dated 5/10/99.
WITNESS REGISTER
Cory Winchell
Legislative Aide to Representative Kott
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified for the sponsor of HB 151
Juanita Hensley
Division of Motor Vehicles
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Supports the proposed Senate Judiciary
Committee substitute to HB 151.
Anne Carpeneti
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on the House and Senate versions of
HB 151.
Thomas Wagner
416 Harris, No. 206
Juneau, AK 99801
POSITION STATEMENT: Favors CSHB 151(JUD) but requests the bill be
amended to include marijuana offenses.
Tom Findley
350 North Franklin St.
Juneau, AK 99801
POSITION STATEMENT: Commented on HB 151
Robert Buttcane
Division of Family & Youth Services
Department of Health & Social Services
PO Box 110630
Juneau, AK 99811-0630
POSITION STATEMENT: Supports the Senate Judiciary Committee
version of HB 151.
First Sergeant Hudson
Alaska State Troopers
5700 E Tudor Rd.
Anchorage, AK 99507-1225
POSITION STATEMENT: Commented on HB 151
Mr. Kevin Hyde
GLAD (Good Legislation Assures a Democracy)
Kenai, Alaska
POSITION STATEMENT: Commented on problems with the existing law
Bill Parker, Deputy Commissioner
Department of Corrections
4500 Diplomacy Dr., Ste 207
Anchorage, AK 99508-5918
POSITION STATEMENT: Supports HB 214
ACTION NARRATIVE
TAPE 99-31, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting
to order at 1:44 p.m. Present were Senators Halford, Donley, Ellis
and Taylor. The first order of business to come before the
committee was HB 151.
HB 151-REVOCATION OF MINOR DRIVER'S LICENSE
CHAIRMAN TAYLOR informed participants that legislative staff worked
with representatives of the Departments of Law and Administration
to incorporate suggested changes into a Senate Judiciary committee
substitute. CHAIRMAN TAYLOR pointed out the new version does not
include a provision stating that if a person is found not guilty by
a court, that verdict would rescind any administrative revocation
that occurred because of the same violation.
CORY WINCHELL, staff to Representative Kott, sponsor of the
measure, responded that Representative Kott would consider that
provision to be a friendly amendment however it was discussed in
the House Judiciary Committee but the problem of entangling issues
was not resolved. He stated if the Division of Legal Services and
the Senate do not find that issue to be problematic, Representative
Kott would favor its inclusion in the bill.
MR. WINCHELL explained the House version of the bill. Several
years ago the Legislature passed a "use it and lose it" law in an
attempt to curb teen alcohol and drug use with respect to driving.
At that time the Division of Motor Vehicles (DMV) anticipated 2500
revocations would occur each year. The actual number increased to
9,000 revocations per year of which 4800 resulted in an
administrative appeal. That caseload placed a burden on DMV, and
minors' licenses were being revoked for patterns that were unclear.
To clarify the statute, HB 151 establishes a nexus to a vehicle and
adds a reissuance procedure for those who can show that they have
ameliorated their unacceptable behavior. The nexus argument
provides that the minor must possess or consume alcohol in a
vehicle for license revocation to occur. The amendment proposed
by Chairman Taylor would prevent an administrative revocation from
occurring if the minor is found to be not guilty in court.
CHAIRMAN TAYLOR announced the Senate Judiciary Committee work draft
is dated May 11, 1999 and was drafted by Mr. Ford.
Number 076
JUANITA HENSLEY, Division of Motor Vehicles, stated DMV is
satisfied with the work draft. DMV has been concerned that the
"use it and lose it" law has had the unintended consequence of
revoking a repeat offender's license for as long as 43 years.
Passage of the work draft will allow DMV to review those case
records and stack revocations concurrently so that people can get
their licenses back after completing treatment and an evaluation.
CHAIRMAN TAYLOR asked Ms. Hensley to describe the differences
between the original bill and the newest work draft.
MS. HENSLEY said the previous version tied a nexus to the vehicle
so that the minor had to be occupying the vehicle and the officer
had to see the minor possessing or consuming alcohol. The work
draft provides that an officer can issue a citation if he/she has
probable cause to believe the minor consumed alcohol. The minor
would have the right to an administrative hearing to contest the
revocation and to file an appeal in Superior Court.
CHAIRMAN TAYLOR asked if the nexus to the vehicle was removed.
MS. HENSLEY said that is correct.
CHAIRMAN TAYLOR expressed concern that the "use it and lose it" law
was initially targeted at minors who did not yet have the right to
drive and was to provide an incentive to not consume alcohol.
Inadvertently, the law was written so that revocations are stacked
consecutively rather than concurrently. The effect has been that
some people cannot get their licenses reinstated until they are 30
because they did something stupid at age 16. He recalled that a
bill was before the previous legislature that included funds for
treatment programs for young people. He asked about its status.
MS. HENSLEY replied that Chairman Taylor was referring to SB 58; it
would have given DMV the authority and a funding mechanism to refer
individuals to a treatment program. The authority provision
remained but the funding mechanism was removed from the bill at the
end of the previous session.
Number 150
SENATOR HALFORD asked how concurrent sentences will provide minors
with an incentive to stop using alcohol.
MS. HENSLEY remarked DMV shares Senator Halford's concern about how
to send the message to minors that it is illegal to consume or
possess alcohol. She stated the work draft is the best incentive
DMV, Youth Corrections and the Division of Alcohol and Substance
Abuse could come up with.
SENATOR HALFORD asked whether more revocation time can be added
after the third offense and, if so, whether that could provide a
minor with an incentive to stop using after the third violation.
MS. HENSLEY said additional revocation time cannot be added under
this draft. The first revocation will decrease from 90 to 30 days,
the second will decrease from one year to 180 days, and the third
will decrease from three years to one year. She noted she recently
requested a DMV computer run of repeat offenders which produced 21
pages of the names of minors with up to 18 violations of minor
consuming in the last three years. Under current law the 18-year
old with 18 violations will not get his driver's license back until
he is 53 years old. Several offenders have 14 and 15 violations;
those offenders are equally distributed in regard to race and
gender. DMV has no mechanism to refer offenders to treatment,
however it does require proof of completion of an alcohol treatment
program when licenses are to be reinstated.
Number 215
CHAIRMAN TAYLOR noted Alaska has one of the highest teen alcoholic
populations in the United States and that the original intent of
the law was to address alcohol consumption among the teenage
population, not merely to address drinking and driving.
MS. HENSLEY commented the "use it and lose it" law was enacted in
July of 1994. In calendar year 1995, 2,891 citations were issued
for minor consuming and minor in possession. In 1998, 4,822
citations were issued. At present 9,491 licenses have been revoked.
SENATOR HALFORD suggested putting a limit on the legislation so
that it no longer applies to drivers upon their 22nd birthday. MS.
HENSLEY stated DMV has no problem with that approach.
Number 266
CHAIRMAN TAYLOR commented the House version is limited to minors
consuming alcohol in a car; the Senate Judiciary version moves away
from the nexus of the vehicle.
SENATOR HALFORD moved to adopt SCSHB 151(JUD) as the working draft
before the committee. He noted the offense was never intended to
be tied to a vehicle. CHAIRMAN TAYLOR objected to the motion for
the purpose of discussion.
SENATOR DONLEY asked who originally sponsored the legislation.
CHAIRMAN TAYLOR replied former Representative Toohey.
SENATOR DONLEY asked Mr. Winchell whether he supports SCSHB
151(JUD).
MR. WINCHELL informed committee members that the nexus argument
resulted from the Anita Storm case. That Supreme Court case
received a two-two decision on appeal. The decision is not binding,
but the arguments were persuasive when considered by the House
Judiciary Committee. In the Storm case, Superior Court Judge
Gonzalez grappled with the question of whether administrative
revocation was punitive or remedial in nature. He concluded it was
punitive, and therefore needed stronger due process requirements.
The nexus argument which ties the offense to vehicles was created
by Representative Rokeberg although he would have preferred that
the offense not be tied to the nexus of a vehicle.
MR. WINCHELL stated in a second case named Rexford vs. State, the
court upheld that for double jeopardy cases, the "use it and lose
it" law is remedial in nature, however the House Judiciary
Committee believes HB 151 deals with due process issues, not double
jeopardy issues.
SENATOR DONLEY asked how the sponsor feels about the committee
substitute. MR. WINCHELL said Representative Kott would have
concerns about the elimination of the nexus argument.
SENATOR HALFORD stated the House version provides that an offense
occurs only when the minor is consuming alcohol inside a vehicle
which essentially makes the bill unenforceable. He added the bill
is substantially different from the original intent of the law.
MR. WINCHELL repeated the case law is not binding.
Number 334
ANNE CARPENETI, Department of Law, informed committee members a
second case is being prepared for appeal now. The Court of Appeals
has upheld the "use it and lose it" law and found it to be remedial
in nature. In essence, a Superior Court judge found the law to be
unconstitutional while the Court of Appeals has found it is not.
SENATOR HALFORD stated more weight should be put on the Court of
Appeals decision rather than on the Superior Court decision which
was made by an individual judge.
MS. CARPENETI indicated that at about the time the "use it and lose
it" law was enacted, the Legislature reduced the penalty for minor
consuming from a misdemeanor to a violation, which carries a
maximum fine of $300. The only time repeat offenders can be
evaluated for alcohol problems is through the "use it and lose it"
program which requires evaluation before offenders' licenses are
reissued. The Department of Law originally supported the "use it
and lose it" law, but now believes it needs to be fine tuned. The
version of HB 151 that passed the House corrects some of the
problems, such as shortening the periods of revocation.
SENATOR DONLEY asked Ms. Carpeneti her opinion of the Senate
Judiciary version. MS. CARPENETI said she likes it. She added a
good feature of the House bill is the discretion it gives to DMV to
reissue a license that was revoked for 20 years under existing law.
She cautioned the nexus requirement in the House version negates
the "use it and lose it" law because a police officer will have to
observe a minor drinking alcohol in a car to issue a minor
consuming citation, and observe a minor holding a container to
issue a minor in possession citation.
CHAIRMAN TAYLOR expressed concern about how to establish possession
by consumption.
MS. CARPENETI said the police officer might observe and give the
minor a field sobriety test.
SENATOR HALFORD asked the lowest quantity of alcohol that a
breathalyser test will reveal. MS. CARPENETI said she believes it
will show .001.
SENATOR HALFORD said that in that case any amount of alcohol will
result in a violation for a minor.
MS. CARPENETI noted the Legislature previously addressed the
problem of the margin of error in breathalyser tests. The margin
of error cannot be considered except in cases of zero tolerance.
CHAIRMAN TAYLOR asked about entanglement problems that could arise
from having the action of an acquittal in court automatically
rescind administrative revocation.
MS. CARPENETI discussed the different standards of proof used;
preponderance of evidence and beyond a reasonable doubt.
CHAIRMAN TAYLOR said his frustration lies in the fact that a family
could take a case to court and the minor could be acquitted, yet
the administrative revocation being carried out could hold a
stiffer penalty. He repeated that the court case should satisfy
both standards and that different standards should not be used. He
questioned whether the bill could be drafted to make that work.
MS. CARPENETI offered to work on that issue.
CHAIRMAN TAYLOR asked Ms. Carpeneti if she is aware of whether
insurance companies continue to charge higher insurance rates to
parents of a minor whose license was revoked even though the minor
cannot drive. MS. CARPENETI replied insurance companies cannot
because both Title 21 and Title 28 prohibit such rate increases.
SENATOR DONLEY objected to the motion to adopt SCSHB 151(JUD) as
the working vehicle of the committee because the sponsor does not
support it.
MR. WINCHELL told committee members the Rexford case dealt
primarily with double jeopardy issues. He repeated Representative
Kott would like to include the nexus argument in the bill.
MS. CARPENETI stated the Rexford case, regarding the question of
whether the revocation is remedial or punitive, revolved around
both double jeopardy and the procedural due process arguments. The
fact that the case dealt primarily with double jeopardy does not
mean that it is not instructive in other issues that can be raised
in the "use it and lose it" law.
SENATOR HALFORD noted the Department of Law believes the nexus
argument makes the law virtually worthless, yet the sponsor wants
to retain that argument in the bill. He said he cannot support a
bill that makes the statute unworkable.
CHAIRMAN TAYLOR took teleconference testimony.
FIRST SERGEANT HUDSON, Alaska State Troopers, testified from
Anchorage and stated the bill sends a mixed message in regard to
possession versus consumption. The Senate Judiciary version gives
a specific meaning to "possession" which will eliminate the chance
of erroneously charging a designated driver with that offense.
MR. KEVIN HYDE, representing GLAD (Good Legislation Assures a
Democracy) made the following comments via teleconference from
Kenai. GLAD supports legislation that punishes minors for drinking
alcohol or using drugs but its members are frustrated by the "use
it and lose it" law. One problem with the law is DMV's ability to
do an administrative revocation independent of a judge's decision.
GLAD questions how the number of drivers with revoked licenses
could rise so dramatically over the past few years. The current
law is not deterring repeat offenders. GLAD believes requiring
these offenses to be heard by a judge would be helpful.
CHAIRMAN TAYLOR offered to send Mr. Hyde a copy of the Senate
Judiciary version via fax and asked him to respond with GLAD's
recommendations.
MR. HYDE noted GLAD's main desire is to eliminate any penalty for
a designated driver.
NUMBER 539
SENATOR DONLEY proposed the following conceptual amendment to the
Senate Judiciary Committee version: delete the words, "while
occupying a motor vehicle" on line 10 and replace with, "the
consumption occurred within the proximity of a vehicle or with a
nexus to a vehicle." He explained that change will maintain the
linkage with a vehicle but it will not require the minor to be
occupying the vehicle.
SENATOR HALFORD stated the proposed language to be an improvement
and said he assumes the court will define the nexus to a vehicle
through case law.
MS. CARPENETI expressed concern that using the words "the nexus" in
the bill will ratify a losing argument. She noted the Department of
Law disagrees with Judge Gonzalez's opinion. She repeated that the
purpose of the "use it and lose it" law is to provide immediate
consequences for minor consumption or possession, and that other
laws are on the books to address drinking and driving. The House
version was very clear on the nexus issue: the minor had to be
sitting in a car consuming alcohol. The Senate Judiciary version
requires the minor to be in proximity of a car which is unclear and
will prompt litigation.
Number 574
CHAIRMAN TAYLOR agreed the "use it and lose it" law was based on a
much broader concept.
SENATOR HALFORD said this bill will repeal the original law and the
numbers will go down tenfold, which will not provide an incentive.
MS. CARPENETI stated she believes the number of convictions will
decrease to below 400 per year. She added when the proposed
committee substitute was being discussed, the trade-off for having
the connection to a car was to reduce the length of revocation from
90 to 30 days for a first offense.
TAPE 99-31, SIDE B
CHAIRMAN TAYLOR repeated that he believes putting a provision in
the bill that negates an administrative revocation if a person is
found not guilty in court will alleviate a lot of concerns.
SENATOR HALFORD agreed, as long as the minor does not use a public
defender.
MS. CARPENETI noted one cannot get a public defender or a jury
trial for a violation.
CHAIRMAN TAYLOR said he believes it would be more effective to
require minors to stand before a district court judge on a
misdemeanor charge but it would cost more.
Number 575
TOM WAGONER, a Juneau attorney with a 16 year old client, stated he
favors the version of HB 151 that passed the House. His client
does not have a license. He was allegedly caught smoking marijuana
nowhere near a car, yet under current law he will be unable to get
his drivers license. Under Judge Gonzalez's opinion, there is an
insufficient connection between his client's behavior and the
effects. The consequences of having a drug and alcohol related
driving offense are more serious than the license revocation; his
client could be prevented from engaging in certain occupations. He
favors the nexus argument but noted the House version does not
include marijuana offenses. He believes alcohol and marijuana
offenses should be treated similarly in this context.
Number 546
TOM FINDLEY, a Juneau attorney, stated he has represented minors
who have been arrested for consuming alcohol and had their licenses
suspended. He believes the law should punish the act of minor
consuming, that sentences should get tougher with each offense, and
that the law should provide for education about alcohol abuse.
However, he believes the House version is not aimed at drunk
drivers; it focuses on those who risk becoming drunk drivers and
carries a penalty of license revocation, which is why the nexus
argument is in the bill. If the minor is consuming alcohol or
marijuana, but is nowhere near a vehicle, that action should have
no effect on his/her license because the problem is one of minor
consuming, not driving-while-impaired. MR. FINDLEY stated it would
be appropriate if the number of cases decreases substantially
because the nexus provision is retained in the bill because the
punishment will apply to the crime and not to individuals who are
nowhere near a vehicle.
CHAIRMAN TAYLOR agreed that drivers' license revocation was a
convenient punishment for a 16 year old caught consuming but the
Legislature may have chosen the "wrong horse to ride" on this
issue.
Number 446
ROBERT BUTTCANE, a juvenile probation officer with the Department
of Health and Social Services (DHSS), stated support for the Senate
Judiciary version. DHSS is concerned that the state has not found
a good way to deal with cases of minor consuming or minor
possession of alcohol. The House version will prevent DHSS from
tracking minors with significant alcohol problems and those minors
will resurface in the delinquency and criminal systems as their
alcohol issues go unchecked. The last Legislature created a
mechanism so that DHSS can operate a juvenile alcohol safety action
program, but no funds were appropriated for it. Although the
Senate Judiciary version may not provide the best answer to the
problem of minor consuming, it is the best available at this time.
CHAIRMAN TAYLOR asked Mr. Buttcane his opinion of reenacting the
old minor consuming law which carried a misdemeanor penalty.
MR. BUTTCANE noted that recriminalizing minor consuming would have
a fiscal impact but that approach would address the problem more
directly.
CHAIRMAN TAYLOR asked if Mr. Buttcane thought the Administration
would support that approach. MR. BUTTCANE replied the
Administration has had these discussions but it does not want to
support that approach without a commitment to fund it.
CHAIRMAN TAYLOR asked if the percentage of prisoners incarcerated
for crimes committed under the influence of alcohol remains the
same. MR. BUTTCANE said he believes that number remains at about
80 percent.
CHAIRMAN TAYLOR questioned whether anyone has studied and projected
the fiscal impact on the prison system, 15 years from now, if the
minor consuming laws were enforced now.
MR. BUTTCANE said he is not aware of any studies but they would be
worthwhile.
CHAIRMAN TAYLOR reminded committee members a motion was on the
table to adopt SCSHB 151(JUD) as the working vehicle of the
committee. He noted his intention to adopt it, and keep it in
committee for a few days while amendments are prepared.
SENATOR DONLEY said he believes the sponsor's concern about the
nexus issue is likely to be resolved in the next few days,
therefore he removed his objection to adopt SCSHB 151(JUD).
CHAIRMAN TAYLOR announced SCSHB 151(JUD) was adopted and would be
heard again at the next hearing.
HB 214-PRISON LITIGATION
BILL PARKER, Department of Corrections, informed committee members
the department has been under court oversight since 1990. It has
been attempting to get out from that oversight by complying with
each issue laid out in the court's settlement agreement. Enactment
of HB 214 will get the Department 97 percent of the way to full
compliance. He noted the bill will enable the Department of
Corrections to be out from court oversight, however it will not
save money. He stated support for the bill.
SENATOR DONLEY moved HB 214 from committee. There being no
objection, the motion carried.
CHAIRMAN TAYLOR announced he has four matters pending on the
calendar to take up at another time. He adjourned the meeting at
2:36 p.m.
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