CS FOR HOUSE BILL NO. 21(FIN) An Act relating to revocation of a driver's license for illegal possession or use of a controlled substance or illegal possession or consumption of alcohol by a person at least 13 but not yet 21 years of age; relating to revocation of a driver's license for illegal possession or use of a firearm by a person at least 13 but not yet 18 years of age; relating to treatment programs required for issuance or reissuance of a driver's license; and providing for an effective date. REPRESENTATIVE BRIAN PORTER, sponsor of the legislation, came before committee. He voiced his understanding that concern previously raised by committee members relates to language at page 1, line 9, and whether to allow "probable cause" arrests rather than arrests based on probable cause and personal observations. Felony arrest may be made based on probable cause. No personal observation is required. For misdemeanors, the only way arrest without a warrant can be made is by personal observation of the offense by an officer. There are exceptions such as domestic violence situations where the officer arrives after the assault but can see that one occurred and has probable cause to believe that the domestic partner was the perpetrator. The officer may then make a probable cause arrest. Further, in a DWI accident case, within a certain length of time after the accident, an officer may make a probable cause arrest. The proposed bill seeks an additional exception in instances where it is necessary to protect minors from drugs and alcohol. Without ability to arrest based on probable cause, an officer must actually see the minor drinking the alcohol. Inability of the officer to arrest when a minor is found in an intoxicated state places the minor in jeopardy. Similar legislation was passed by the Senate last year, and failed to pass the House. Senator Rieger asked what would happen in a situation where a juvenile is identified by a third person as "being at a party where alcohol is present." Representative Porter advised that that alone would not constitute probable cause. The officer must actually confront the minor and be able to determine, through observation, that the minor has been drinking. Citing AS 14.15.050, Senator Rieger voiced his understanding that mere possession would trigger the offense within the proposed bill. He then inquired concerning the threshold for probable cause that a juvenile is in possession of alcohol. Representative Porter described the general probable cause threshold as "that amount of information that would make a reasonable, prudent person believe that that in fact happened." The whole intent of the bill is "not to be able to, without observation, make an arrest for possession if there isn't an intoxication element." The intent is to cover situations such as that in Ketchikan where an intoxicated young man was taken into custody, but the case was subsequently lost because the judge determined that the officer had not personally observed the drinking that caused the intoxication. Senator Rieger asked if the sponsor would be open to bill language that reflects that intent rather than current wording. Representative Porter responded that in areas of concern raised by Senator Rieger, probable cause "would probably not be established." Senator Rieger referenced existing law and noted that it allows for license revocation for consumption or possession of alcohol. While testimony from the sponsor indicates that the intent of the bill is to apply to situations where a minor has been drinking, but the officer has not observed the drinking, that is not how proposed language reads. He voiced concern that ambiguity in enforcement could result, and the bill could be unfairly used against a young person toward whom an officer has taken a dislike. Senator Rieger remarked that the legislation is "riddled with ambiguities about whether the due process would be followed or not." Representative Porter referenced a proposed amendment addressing "similar elements" which he advised he did not oppose. He further referenced an amendment relating to language adding "adjudicated or convicted" which he advised he also would not oppose. He said he would have no problem "taking possession out of here." The aim of possession was internal rather than external. There is no hidden intent in the legislation. Senator Rieger said he was not questioning the sponsor's intent but the actual language of the bill and whether or not it reflects the proposed intent. Co-chairman Halford inquired concerning what would happen if the order of the sentence were reversed to read that "if a police officer, based on personal observation, has probable cause." MARGOT KNUTH, Assistant Attorney General, Dept. of Law, came before committee to speak to the question. She advised of concern that "based on personal observation" means something different to Alaska courts than it does to members of the committee. Courts construe that wording to mean that the officer observed the offense being committed rather than observing that the minor was intoxicated. Addition of personal observation would confuse the statute and undermine the intent of the legislation. Representative Porter suggested addition of "based on personal observation of the minor." He noted that personal observation is a "term of art" used in framing probable cause arrest. Co- chairman Halford advised that he was satisfied with the bill as it stands. He then asked Ms. Knuth if she had alternative language. She responded negatively. She reiterated that the "probable cause to believe" standard is used for felony cases and in citing for misdemeanors. It is the proper standard to use. Senator Zharoff raised a question regarding language relating to "municipal ordinances." Ms. Knuth explained that municipal ordinance may criminalize the same conduct as state statutes. Situations were identified wherein people prosecuted under state law were treated differently than those prosecuted under municipal ordinance for the same offense. The consequence was that individuals were being cited and prosecuted under state law only in order to benefit from "this extra procedure here." Senator Donley suggested that language read: "has probable cause based on some personal observation and other evidence." Representative Porter advised that the foregoing presumes "some other element" would need to be proven, besides the observation of the officer that the minor was intoxicated. Discussion followed among members and Ms. Knuth regarding application of the phrase "probable cause to believe." Further discussion followed regarding legislation that would classify the offense as a violation rather than a misdemeanor. Representative Porter voiced support for that approach. The intent is to be able to take an intoxicated minor into custody so that he or she does not further endanger himself or herself. Senator Zharoff asked if the proposed bill would lead to incarceration. Ms. Knuth responded negatively, saying that "It's only a suspension of driving privileges for the offense." Representative Porter advised that the foregoing presently exists but does not apply to municipal ordinances. It is equally reasonable to have this sanction available to municipal ordinance violations. Co-chairman Halford referenced a conceptual amendment by Senator Phillips to add "with substantially similar elements" following the word "ordinance" throughout the bill. He then called for objections. Senator Rieger objected. A discussion of backup information dealing with the number of murder and DWI fatalities in Anchorage followed between the Senator and Representative Porter. Senator Rieger voiced support for addition of the above wording in all sections but Sec. 5. He suggested that municipalities should have the right to their own firearms' laws within their borders. He questioned bill provisions that would suspend a minor's driving license for improper use of a firearm rather than taking away the gun. He suggested that the bill provides no symmetry between the offense and remedy. Representative Porter spoke to established public policy that it is not appropriate, in some cases, for minors to possess firearms, and it is not appropriate, at all, for minors to drink. To further enhance that position, the legislature passed legislation to deter minors from doing things they should not do. Because young people value their driver's license and would not want to lose it, license suspension was chosen as the deterrent. The proposed bill seeks to ensure that cities with municipal ordinances of the same kind, are allowed to use that sanction when prosecuting under municipal ordinance. Co-chairman Halford voiced support for adding the above- noted language throughout the bill. Senator Rieger MOVED to apply the language to all sections but Sec. 5. Senator Randy Phillips OBJECTED. The Co-chairman called for a show of hands. The motion failed on a vote of 2 to 4. Co- chairman Halford next called for a show of hands on the main motion to apply the language to all sections of the bill. The motion CARRIED on a vote of 4 to 2, and the amendment was ADOPTED. Senator Donley MOVED to add "or adjudicated" after the word "convicted" at page 4, lines 4 and 6. No objection having been raised, the amendment was ADOPTED. Senator Zharoff inquired concerning the length of time of license revocation. JUANITA HENSLEY, Chief of Driver Services, Division of Motor Vehicles, Dept. of Public Safety, came before committee. She advised of a revocation of 90 days for a first offense, 1 year for the second, and 3 years for the third offense. Discussion followed between Mrs. Hensley and Senator Zharoff concerning requirements that minors must meet before a license is reinstated. Ms. Knuth noted that existing law allows the department to waive requirements for those who live in areas where drug rehabilitation or alcoholism treatment is unavailable. Senator Zharoff next asked how long a revocation would remain on an individual's driving record. Mrs. Hensley said that no violation would appear on the minor's driving license because revocation may not result from a traffic offense. Revocation will remain on internal records for ten years. Discussion of insurance requirements and the impact of revocation on insurance costs followed between Senator Zharoff and Mrs. Hensley. Mrs. Hensley explained that insurance companies do not have access to the same records as does the department. She then advised of 5-year records for revocations and 3 years for other traffic offenses. Further discussion of insurance followed between Mrs. Hensley and Senator Rieger. Senator Rieger stressed that the ultimate penalty under the proposed bill might be not only license revocation for 30 days but payment of $1,000 a year in additional insurance costs. Co-chairman Halford suggested that the higher payment might be a "good deterrent." Senator Zharoff voiced his understanding that, under the proposed bill, a minor would not have to be driving a vehicle to have his or her license revoked. Co-chairman Halford noted that the minors "just have to be breaking the law." RECESS - 9:55 a.m. RECONVENE - 10:02 a.m. Senator Phillips MOVED that CSHB 21 (Fin) pass from committee with individual recommendations and the accompanying fiscal notes. Senator Rieger OBJECTED. He then directed attention to the four qualifiers set forth under subsection (c) at page 2 and noted that they must be satisfied before revocation can occur. He then raised a question concerning whether someone in violation of a municipal ordinance in 1992 and charged with a subsequent offense in 1996 would automatically satisfy the second qualifier because of the prior citation. He referenced prior testimony that "It wouldn't be interpreted that way by the courts." Ms. Knuth responded, "It does not seem a reasonable interpretation, at all, that the statute could be read as you're suggesting." Mrs. Hensley clarified that Sec. 2 deals with administrative processes associated with revocation and the hearing process. A hearing officer looking at a new case would have to determine that all four qualifiers are met before a license can be revoked. That will be based on each individual arrest. End: SFC-95, #21, Side 1 Begin: SFC-95, #21, Side 2 Co-chairman Halford called for objections to passage of the bill. No objection having been raised, CSHB 21 (Fin) was REPORTED OUT of committee with zero fiscal notes from the Dept. of Law, Dept. of Public Safety, Dept. of Health and Social Services, and Dept. of Administration.