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.