SB 224-MINORS DRIVING AFTER CONSUMING ALCOHOL    CHAIR GARY STEVENS announced SB 224 to be up for consideration. SENATOR JOHN COWDERY motioned to adopt committee substitute (CS) \S version for SB 224. There being no objection, it was so ordered. CRYSTAL LOWNDES, staff to Senator John Cowdery, bill sponsor, explained that the CS for SB 224 is based on the Texas model for zero tolerance of underage drinking and driving. The sponsor is worried about this becoming a larger problem and believes that if the consequences aren't stiff enough, underage DUIs will continue to escalate. CHAIR GARY STEVENS asked Ms. Lowndes to explain how the CS changes the most recent version of the bill. MS. LOWNDES explained that it is currently an infraction for a minor to operate a vehicle after consuming alcohol and the CS makes the offense a class B misdemeanor, which is a criminal offense. SENATOR COWDERY asked her to explain how teens sometimes view the issue. MS. LOWNDES told members that it's not uncommon for teens that have been stopped for underage drinking and driving to shift the blame to someone else. SENATOR GRETCHEN GUESS asked how this change would stand up in court and what the process would be for determining that a minor is operating a vehicle after consuming alcohol. MS. LOWNDES said that a .02 blood alcohol concentration (BAC) level is on the books now and the legislation doesn't change that. SENATOR GUESS asked if .02 is currently in statute. MS. LOWNDES said yes. SENATOR GUESS asked for the definition of vehicle. MS. LOWNDES didn't think there was a definition in the statute. SENATOR GUESS suggested clarifying the issue because there would be a problem if this were to become law. SENATOR COWDERY noted that Ms. Lowndes had spoken with the Commissioner of Public Safety. MS. LOWNDES added that Commissioner Tandeske gave her the impression that this wouldn't change how things are done. She stated: It won't change the process of what they go through when they're pulled over on the side of the road and they're cited -they're released to their parent's custody.... The Commissioner has also led me to believe that there are laws currently in place, specifically AS 04.16.050, it's the minor consuming, possession, and consumption law. Section D of that law states that a third offense is a class B misdemeanor, which is the same as we're trying to pass here. So along with that goes all the same penalties that are in place in this CS. And those are already on the books. CHAIR GARY STEVENS summarized that the first arrest wouldn't result in jail time, but a future arrest could bring a prison term. MS. LOWNDES added: "We wanted to keep the penalty for first time offenders as close to what they are now because if they're a first time offender you don't need to worry about them repeat offending. Only 20 percent of the people that are cited with MOVACs (minor operating a vehicle after consuming) are repeat offenders. That's an estimate that I was given from MADD." CHAIR GARY STEVENS asked if that means that 80 percent of those stopped the first time aren't arrested again. MS. LOWNDES said that's correct. SENATOR COWDERY asked what information she got from the Department of Motor Vehicles (DMV). MS. LOWNDES told him that about 350 minors had their licenses revoked for some reason in the past year. SENATOR COWDERY asked about repeat offenses. MS. LOWNDES didn't believe the state tracked the number of licenses that were revoked two or more times. SENATOR STEDMAN noted that the BAC level for adults is .08 then asked for confirmation that this proposal was asking for a .02 BAC level. MS. LOWNDES said the current intoxication level for a minor is .08. In the original form, the bill lowered the level to .02 for anyone less than 21 years of age. They have since changed the bill to deal with a completely different statute so the BAC level would remain at .08. SENATOR COWDERY clarified, "This is not that you're driving under the influence. I'm trying to stop our youths from drinking and driving any amount." SENATOR STEDMAN said he understood that, but he got a little confused in the testimony. He asked if the bill would reduce the current .08 BAC level to .02 for minors. MS. LOWNDES nodded. SENATOR STEDMAN reviewed the fiscal note and said it looks as though 400 to 600 additional cases are anticipated with the more stringent requirements. MS. LOWNDES said those fiscal notes are based on the original bill, but she would get new fiscal notes now that the CS was adopted. SENATOR STEDMAN opined they would be similar. because the same .02 percentage is used. MS. LOWNDES said, "We're not convicting them of a DUI at .02. We're simply taking a law that's already in place and making it a misdemeanor rather than an infraction." SENATOR STEDMAN asked if there would be two levels. MS. LOWNDES said that's correct. SENATOR STEDMAN referred to page 3, line 13 of the CS and said he didn't have any concerns about the concept, but he didn't want to impose undue penalties on youths which would adversely affect them later on. He suggested that license revocation and other behavior modification was preferable to making them criminals. MS. LOWNDES pointed out that, under current law, the license is revoked, the youth may be given community service, and a fine may be assessed. She added, "It doesn't seem to be keeping anyone from thinking twice about it so this merely makes it so that repeat offenders, somebody that's coming in on their third may not get a jail sentence, but somebody who's coming in on their fourth, fifth, sixth - it's up to the judge...but we want to have something there." SENATOR STEDMAN asked how they decided on a .02 level. MS. LOWNDES said this is an effort to make youths realize that driving with any amount of alcohol in their system is against the law. SENATOR STEDMAN agreed with the direction, but he wanted to make sure that youthful indiscretions weren't unnecessarily penalized. SENATOR GUESS noted that the definition of minor isn't in the bill and asked if the intent is to include the ages of 14 to 21. MS. LOWNDES said that's correct. SENATOR GUESS thought it was interesting that minors weren't defined as those less than 21 years of age. She then asked if the definition of "consumed any quantity of alcohol" might be in regulation because she couldn't find it in statute. "I'm confused also between a .08 and .02." she said, because it's not in statute. CHAIR GARY STEVENS said a trooper was on the off net and could respond if Ms. Lowndes didn't recall. MS. LOWNDES said she would like that. SENATOR STEDMAN continued to express reservations about the long-term impact the bill might have on young people. SENATOR COWDERY said they were simply trying to curtail drinking at a young age and added that a lot is left to the judge's discretion. CHAIR GARY STEVENS commented that Senator Guess's question about age is important and asked for verification that a 13 year old may not operate motor vehicles under any condition. MS. LOWNDES said she wasn't sure. CHAIR GARY STEVENS said they could ask the troopers. SENATOR STEDMAN stated: "For those folks that weren't in the Senate Finance Committee last Monday, the Governor came in and had some opening remarks and one of the remarks he made was the amount of money that the State of Alaska pays concerning alcohol abuse relative to schools. It's a large amount so it's duly noted that it's a problem within the state - substance abuse and alcohol in particular." JEFFERY JOHNSON testified via teleconference to express support for raising the offense to a class B misdemeanor. He reported that he had nine DWIs and didn't do any jail time until the fifth time. He said that if he'd been sent to jail sooner, he might have faced the music and sought help for his alcoholism sooner. SENATOR COWDERY asked how much time he spent in jail and when he took responsibility for his actions. JEFFERY JOHNSON said he spent eight years, nine months and some days in jail and began to take responsibility when he was charged with a felony after his ninth DWI. CINDY CASHEN, Executive Director of MADD Juneau, stated that she was representing the four MADD Alaska chapters in support of the CS for SB 224. "Driving is a privilege not a right. A person, regardless of age, who continues to drink and drive should have serious consequences, which would serve as a deterrent for future drunk driving." It's repeat offenders who are responsible for one-third of all DUI arrests and this bill deals with habitual offenders, she said. She reported that Fairbanks averages 40 drunken driving arrests per month for those who are under 21 years of age. Between July 2001 and July 2002 there were 1,028 DUI arrests meaning that about 480 of those were teenagers. Reading from DOT statistics she said that of the 4,918 DUIs in Alaska in 2001, 3,107 were first time offenders. There were over 1,000 second time offenders and more than 450 third time offenders. "We have a significant number of repeat drunk drivers and we have a significant number of them that are teenagers." This is part of a solution and judges would appreciate that the bill simplifies matters. SENATOR GUESS asked for clarification regarding no prison time between .02 and .08. MS. CASHEN said she's foggy on that point and Annie Carpeneti would be the one to ask. CHAIR GARY STEVENS asked Lieutenant Storer if it's true that a 13 year old can't legally operate a motor vehicle under any circumstance. LIEUTENANT AL STORER, Alaska State Trooper, stated that they could drive on private property, but not on any other property. CHAIR GARY STEVENS commented that, in that case, the bill concerns youths 14 to 21 years of age. LIEUTENANT STORER said that's correct, but that's not to say that an officer wouldn't have contact with someone who is not yet 14 and driving. SENATOR GUESS asked if .02 is in regulation or statute because she couldn't find it. LIEUTENANT STORER said he honestly didn't know where the .02 came from. PATTY WARE, Division Director for Juvenile Justice, Department of Health and Social Services, stated that she was working from \version Q so she was adjusting her testimony based on what she was hearing. She noted that much of the testimony was mixing apples and oranges. "We have a set of DUI statutes that address drinking and driving when the BAC is .08 or higher - for both juveniles and adults," she said. SB 224 isn't about DUI statutes, she emphasized. The reference to .02 BAC is confusing, because it's not in existing statute or the \S version committee substitute. TAPE 04- 20, SIDE B  4:25 pm CHAIR GARY STEVENS acknowledged the point. MS. WARE said that current statutes regarding MOVACs don't require any level of impairment. The department is supportive of any proposal promoting a graduated sanction approach to this serious concern, but they have significant concern about raising the classification to a class B misdemeanor and the imposition of jail time for a minor operating a vehicle after consuming alcohol. She pointed out that there are already provisions in statute to send a DUI offender to jail. Furthermore, she said: We in our own juvenile facilities have juveniles report to secure juvenile facilities on a DUI charge. That can and does already happen. The concern that we have with respect to jail time with respect to this particular statute is that MOVACs are in fact, a status offense meaning that it's an offense based on virtue of your age. We don't have similar statutes for adults. There are federal requirements in terms of the federal Juvenile Justice and Delinquency Prevention Act that put us in a bind in terms of any kind of incarceration for status offenses. The administration has imposed two specific bills, HB 487 and SB 340, which are moving through the bodies as we speak, in terms of helping us as a department, essentially beef up our compliance with the JJDP Act and so this would, in essence, make that more difficult. With respect to other possible options, the other thing I would say is that I'm not real clear that the existing statute is broken. We all agree that we should stiffen the penalties and increase them if in fact offenders are coming back and repeating that same offense. But I'm a little bit confused by this. I don't know if we've got anybody on from DMV, but we got data from the Division of Motor Vehicles and in fiscal year 2003 there were 387 juveniles picked up under the MOVAC statutes. In terms of the re-offense rate it's fairly low - seven percent. Ninety three percent of those kids were first time offenders and did not come back. Would we like it to be higher than ninety three percent? Yes. Does that mean that we should make the repeat offense a [class] B misdemeanor? Changing the sentencing structure in Alaska statutes is complicated. It has, a lot of times, unintended ramifications and consequences. I would propose to this committee that we think very seriously before we do that. Again, other options are to keep it a violation, to start with mandatory minimums both for the first time and subsequent offenses. SENATOR COWDERY asked if she had any information on how often offenders re-offend. MS. WARE said very few went beyond a second offense, but DMV could articulate that better than she. SENATOR COWDERY said his question was whether they were second, third, fourth, or fifth time offenders and then reflected on Mr. Johnson's testimony. MS. WARE warned that, "We need to be very mindful, again, at the difference between adults and juveniles - of the requirements that we have to address juveniles in a different manner than we work with adults. That doesn't mean that that sometimes doesn't include periods of incarceration. As I said, under existing DUI statutes, we are allowed to put juveniles in jails when they commit those offenses. But this particular approach is, in fact, a status offense and that, as I said, poses some additional problems. I would also submit to the committee that in terms of repeat offenders, we need to be focused, not just on holding them accountable, which is a critical piece, but we also need to be focused on what we need to do to make sure they get whatever assistance and/or screening and/or treatment so that they don't come back to us. It's a complex issue and I think that sometimes we might be tempted to try to solve that through means that are too simple." SENATOR GUESS asked her to explain how the bill might impact compliance with the JJPD Act and therefore federal funds. MS. WARE said they aren't allowed to put status offenders in either juvenile or adult jails. Status offenses are based on age and are anything that doesn't apply to adults. SENATOR GUESS repeated there's no ability to impose jail time for offenses that are based on age. MS. WARE noted that there are some obscure exceptions. SENATOR GUESS said she just wanted to clarify that point. SENATOR COWDERY announced that he had to leave and thanked the Chair for hearing his bill. CHAIR GARY STEVENS stated that there were several more people to speak to the bill. BARBARA BRINK, Director of the Alaska Public Defender Agency, testified via teleconference to say she wanted to explain how the bill might affect her agency. She noted that she was working from the \I version rather than the \S version. She continued: As I understand it, the bill is attempting to create a new offense for minors. That is, minors having consumed any alcohol operating a motor vehicle. This currently is in our statute books as an offense, but it is listed at what is called the infraction level. A person who is convicted or found guilty of that offense cannot currently be sentenced to jail time. As I understand the current CS, that is to change and this crime is to become a class B misdemeanor offense. And that frankly Mr. Chairman has a huge impact on my agency. If a person is charged with an infraction, they are not entitled to the free assistance of counsel if they are indigent. However, if a person is charged with a class B misdemeanor, they are entitled to the full assistance of counsel and, frankly, to the right to have a jury trial. So I think these are some of the unintended consequences that are going to flow from this bill. I prepared a fiscal note for the original bill based on the figures that the DMV gave all of us. And based on the figures they gave us, we were approximating that we would need the services of one additional attorney in the Anchorage area since most of our minor consuming and DWI cases involving minors have been in Anchorage and Palmer. I was asked whether my fiscal analysis would change now that this crime went down to a class B misdemeanor from the original bill, which had it as a class A misdemeanor, and my answer, frankly, is no. There isn't a definable quantity of less work involved in representing somebody whether it's a class A misdemeanor or a class B misdemeanor. The full panoply of work experiences that we need to do in order to provide the effective assistance of counsel would still be required if it was a class B misdemeanor. And frankly, it would still be required even if a person was not authorized to receive jail time until it was their second, third, or fourth offense. As you might recall, the Legislature recently tried to create a similar type of scheme involving minor consuming cases. In the minor consuming cases the child would initially get treatment and community work service. It wasn't until their third offense that it would be called a class B misdemeanor and they were actually eligible for jail time. But this was litigated before the Alaska Court of Appeals and the court agreed that that makes it a class B misdemeanor. If you can go to jail based on a conviction for an earlier offense, even for those earlier offenses - even if you can't get jail on those offenses you are entitled to have representation and to have a jury trial. Frankly, the impact to the Public Defender Agency on that change in the minor consuming statute was enormous. Back in FY01, our agency represented a total of 58 children charged with minor consuming. Last year we represented 892 children on minor consuming charges. So this has the potential of being a very large change in the way we process these cases, and a very large change in the way we defend these cases, and a very large change in the punishment we impose. I guess what we have to decide, as a matter of policy, is if the change in punishment is worth all those other costs that it is going to take. I must agree we should remember that we are not talking about a drunk driving bill. What we are talking about is a very low presumption that alcohol has been consumed. And as Patty Ware testified, certainly the minors we represent now who have above a .08 in their blood, they go to jail. They go to a secure youth facility. They serve the same kind of jail time that adults do. Though we certainly already are tough on those kids who are driving under the influence, the question is how tough do we want to be on kids who have just consumed any minor amount of alcohol, no matter how small. I would have to say that my sense is that unless we are prepared to pay for the huge increases in prosecution defense and incarceration of these children, that perhaps we should keep it at the level that it currently is. KERRY HENNINGS with the Department of Motor Vehicles stated that she was available for questions. CHAIR GARY STEVENS said he was sorry that Senator Cowdery had to leave, but several questions were raised and it appeared that the bill needed further work. He asked Ms. Lowndes to work with the Department of Juvenile Justice and Senator Guess to satisfy some of the issues that were raised. MS. LOWNDES said she would be happy to do so. CHAIR GARY STEVENS announced that it wasn't his intention to slow the bill, rather to develop a reasonable bill that they could all support. SB 224 was held in committee.