HOUSE JUDICIARY STANDING COMMITTEE April 23, 1999 1:45 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT All members present COMMITTEE CALENDAR SENATE JOINT RESOLUTION NO. 8 Relating to the 2000 decennial United States census and to the development of redistricting data for use by the state in legislative redistricting. - MOVED HCS SJR 8(JUD) OUT OF COMMITTEE HOUSE BILL NO. 151 "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." - MOVED CSHB 151(JUD) OUT OF COMMITTEE (* First public hearing) PREVIOUS ACTION BILL: SJR 8 SHORT TITLE: FAIR AND ACCURATE CENSUS SPONSOR(S): SENATOR(S) WARD Jrn-Date Jrn-Page Action 2/19/99 308 (S) READ THE FIRST TIME - REFERRAL(S) 2/19/99 308 (S) STA 3/04/99 (S) STA AT 3:45 PM BELTZ ROOM 211 3/09/99 (S) STA AT 3:30 PM 3/09/99 (S) MOVED OUT OF COMMITTEE 3/09/99 (S) MINUTE(STA) 3/12/99 492 (S) STA RPT 3DP 1NR 1DNP 3/12/99 492 (S) DP: WARD, PHILLIPS, GREEN; 3/12/99 492 (S) NR: WILKEN; DNP: ELTON 3/12/99 492 (S) ZERO FISCAL NOTE (S.STA) 3/16/99 (S) RLS AT 11:55 AM FAHRENKAMP 203 3/16/99 (S) MINUTE(RLS) 3/24/99 662 (S) RULES TO CALENDAR AND 1 OR 3/24/99 3/24/99 668 (S) READ THE SECOND TIME 3/24/99 668 (S) ADVANCED TO THIRD READING UNAN CONSENT 3/24/99 668 (S) READ THE THIRD TIME SJR 8 3/24/99 668 (S) PASSED Y15 N5 3/24/99 670 (S) TRANSMITTED TO (H) 3/25/99 567 (H) READ THE FIRST TIME - REFERRAL(S) 3/25/99 567 (H) STA, JUD 4/08/99 (H) STA AT 8:00 AM CAPITOL 102 4/08/99 (H) MOVED OUT OF COMMITTEE 4/08/99 (H) MINUTE(STA) 4/08/99 687 (H) STA RPT 4DP 2NR 4/08/99 687 (H) DP: JAMES, COGHILL, WHITAKER, OGAN; 4/08/99 687 (H) NR: SMALLEY, KERTTULA 4/08/99 687 (H) SENATE ZERO FISCAL NOTE (S.STA) 3/2/99 4/22/99 (H) JUD AT 1:00 PM CAPITOL 120 4/22/99 (H) SCHEDULED BUT NOT HEARD 4/23/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 151 SHORT TITLE: REVOCATION OF MINOR DRIVER'S LICENSE SPONSOR(S): REPRESENTATIVES(S) KOTT, Austerman, Dyson, Rokeberg, Smalley, Cissna Jrn-Date Jrn-Page Action 3/22/99 531 (H) READ THE FIRST TIME - REFERRAL(S) 3/22/99 531 (H) JUD 3/24/99 562 (H) COSPONSOR(S): AUSTERMAN 3/29/99 (H) JUD AT 1:00 PM CAPITOL 120 3/29/99 (H) SCHEDULED BUT NOT HEARD 4/07/99 (H) JUD AT 1:00 PM CAPITOL 120 4/07/99 (H) TABLED 4/07/99 (H) MINUTE(JUD) 4/08/99 (H) JUD AT 1:00 PM CAPITOL 120 4/08/99 (H) HEARD AND HELD 4/08/99 (H) MINUTE(JUD) 4/09/99 (H) JUD AT 1:00 PM CAPITOL 120 4/09/99 (H) HEARD AND HELD 4/09/99 (H) MINUTE(JUD) 4/12/99 (H) JUD AT 1:00 PM CAPITOL 120 4/12/99 (H) HEARD AND HELD SUBCOMMITTEE APPOINTED 4/12/99 (H) MINUTE(JUD) 4/23/99 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER MARK HODGINS, Legislative Assistant to Senator Jerry Ward Alaska State Legislature Capitol Building, Room 423 Juneau, Alaska 99801 Telephone: (907) 465-4940 POSITION STATEMENT: Presented sponsor statement on SJR 8. CORY WINCHELL, Administrative Assistant to Representative Kott Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 Telephone: (907) 465-3777 POSITION STATEMENT: Presented the proposed CSHB 151, Version X. HELENE HERNDON P.O. Box 262 Homer, Alaska 99603 Telephone: (907) 235-6260 POSITION STATEMENT: Testified on HB 151. LINDA WRIGHT P.O. Box 105 Soldotna, Alaska 99669 Telephone: (907) 262-4889 POSITION STATEMENT: Testified on HB 151. KEVIN HYDE, President Good Legislation Assures Democracy (G.L.A.D.) P.O. Box 105 Soldotna, Alaska 99669 Telephone: (907) 262-4889 POSITION STATEMENT: Testified on HB 151. JUANITA HENSLEY, Administrator Director's Office Division of Motor Vehicles Department of Administration P.O. Box 110200 Juneau, Alaska 99811-0200 Telephone: (907) 465-5648 POSITION STATEMENT: Answered questions on HB 151. ANNE D. CARPENETI, Assistant Attorney General Legal Services Section-Juneau Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Testified on HB 151. ACTION NARRATIVE TAPE 99-40, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:45 p.m. Members present at the call to order were Representatives Kott, Green, Rokeberg, James, Murkowski and Kerttula. Representative Croft arrived at 2:38 p.m. SJR 8 - FAIR AND ACCURATE CENSUS CHAIRMAN KOTT announced the first order of business is SJR 8, Relating to the 2000 decennial United States census and to the development of redistricting data for use by the state in legislative redistricting. Number 0060 MARK HODGINS, Legislative Assistant to Senator Jerry Ward, Alaska State Legislature, came before the committee to present the sponsor statement. This resolution urges Congress and the Bureau of the Census to conduct the 2000 decennial census consistent with the ruling of Department of Commerce v. United States House and the Constitution of the United States. The bureau plans on using random sampling techniques, or other statistical methods, instead of an actual enumeration. A random sampling technique or other statistical method could raise serious issues of vote dilution and violate "one-person, one-vote" legal protections. An analogy is flying over an area to count moose then extrapolating that number to the entire state. An even better analogy is counting a few fish then deciding that the Kenai River is over or under escapement and curtailing the various industries. He noted that a random sampling technique or other statistical method could create problems with the way the state House and Senate lines are drawn. Therefore, it is very important that there is an accurate count. Number 0197 REPRESENTATIVE ROKEBERG asked Mr. Hodgins whether there is any legislation pending before Congress for this resolution to be used for testimony and/or backup. MR. HODGINS replied Congress has some sway with the Bureau of the Census. The resolution simply asks that P.L. 94-171 data be used only if it is done with an actual nose count. He doesn't believe that there is any legislation going through Congress that would impact this resolution. Number 0273 CHAIRMAN KOTT asked Mr. Hodgins whether there is any indication that the Bureau of the Census plans on not being consistent with the ruling. MR. HODGINS replied the Bureau of the Census depends largely on the administration of each state in the formulation of what is called a "book" - the vehicle to decide how each state is to be counted. Senator Ward feels that the best count is an actual nose count. There is always a small amount of statistical count within the census because everybody can't be counted, and every state, borough or municipality has the ability to challenge the count for their area. In researching this issue, the problem is that the military is counted in their home state, and the homeless and other itinerants are assigned a place. This causes quite a bit of problem and litigation throughout the state. Number 0406 REPRESENTATIVE GREEN said, according to his understanding, that currently the number the state gets from the Bureau of the Census in determining representation to the U.S. House of Representatives will be an enumeration. He asked Mr. Hodgins whether he has heard of anything indicating that will not be the case. MR. HODGINS replied the emphasis of the resolution is to make sure that the Bureau of the Census uses the enumeration count rather than a statistical sampling. He reiterated there are times when the bureau uses both because it cannot count everybody. Senator Ward wants to make sure that is held to a minimum. Number 0496 REPRESENTATIVE GREEN asked Mr. Hodgins whether he has heard of anything indicating that the bureau is going to deviate and give a statistical count instead of an actual head count. According to his understanding, in determining the number of representatives for each state, the actual count will be used, and what the states use is up to each state. MR. HODGINS replied no. He has not heard otherwise. Number 0569 REPRESENTATIVE KERTTULA asked Mr. Hodgins to explain the intent of the following "whereas" clause: "WHEREAS the Alaska State Legislature believes that a person, once enumerated, should never be omitted from census figures provided to states for purposes of redistricting; and" REPRESENTATIVE KERTTULA wondered about a person who dies or moves. Number 0597 MR. HODGINS replied he's not sure whether the definition of a person is "alive" in that "whereas" clause. He is assuming that once a person passes on that person would no longer be a person. The idea for this clause is that once a person is counted that person cannot be used for a statistical count for drawing up a district line within the state. Number 0642 REPRESENTATIVE KERTTULA stated, maybe, it should be worded, "should never be part of a sample..." It looks like a person could never move to another state. Number 0657 MR. HODGINS said the census is a snapshot of where people are at a given time. If a person is counted in one place, that person cannot be counted in another place, which is what the "whereas" clause is referring to. Number 0673 REPRESENTATIVE JAMES said her experience is that, if a person dies or moves when the count is made, the count stays part of the enumeration process. Number 0714 REPRESENTATIVE MURKOWSKI said she agrees that the language is less than clear and suggested looking at it. She thinks the language, "once enumerated we don't go the statistical route," says what everybody is in agreement on. Number 0751 REPRESENTATIVE JAMES said she is not sure that the "whereas" clause is needed at all. Number 0765 REPRESENTATIVE GREEN suggested the following language: "once enumerated, should not be submitted to statistical variation" Number 0776 MR. HODGINS stated the purpose of the "whereas" clause is, drawing on an analogy, that once an application is submitted for a permanent fund dividend and the person applying dies, it still goes toward that person's estate. However, this is an actual count on a given day of the population of the United States, which is how the lines are drawn. If somebody dies or is born the next day, that somebody is not counted and cannot be removed from the count. The idea is to get a static figure to be used for district lines and federal funding. He thinks it should stay within the body of the resolution. Number 0879 REPRESENTATIVE JAMES said she understands the argument, but it doesn't say what it's intended to say. In accordance with her understanding of the census process, it doesn't mean if a person dies or moves away. It means that once a person is counted in an enumeration that person shouldn't be counted in any other calculation, which is being said in several other ways in the resolution. She's not sure whether it needs to be said again. Number 0935 MR. HODGINS said the gist of the "whereas" clause is saying, once the count has been made, the figures should not be changed. Number 0950 CHAIRMAN KOTT questioned Mr. Hodgins as to whether that is not how it is done currently. MR. HODGINS replied it is a long and involved process. He noted that municipalities and communities can protest the count to adjust their numbers. It is to a city's advantage, in general, to have as many of its citizens counted as accurately as possible because of funding. Number 0987 REPRESENTATIVE GREEN offered [as an amendment] to strike the language - "never be omitted from census figures provided to states" - and insert the language - "not be involved in a statistical sampling procedure" - on page 2, line 20 [Amendment 1]. REPRESENTATIVE KERTTULA wondered whether it would be better to say "sampling or other statistical methodologies" in order to be consistent with other language in the resolution. In addition, once the word "never" is used... REPRESENTATIVE GREEN interjected and stated that his amendment would take the word "never" out. REPRESENTATIVE GREEN further stated that Representative Kerttula brings up an interesting point and suggested the following language: "should not be involved in sampling or other statistical methodologies" REPRESENTATIVE JAMES questioned whether it should say "involved" or "counted." UNIDENTIFIED SPEAKER replied it should say counted. CHAIRMAN KOTT noted that Representative James' question is a friendly amendment to Representative Green's suggestion. CHAIRMAN KOTT asked whether there is any objection to the amendment, as amended. There being none, it was so adopted. Number 1138 CHAIRMAN KOTT asked Mr. Hodgins whether there was any indication from the Senate of including a copy of the resolution to the head of the Bureau of the Census [a conceptual amendment]. MR. HODGINS replied he thinks that would be an appropriate amendment. CHAIRMAN KOTT noted that since this resolution directs attention to the bureau, they ought to have it firsthand. He further noted that the correct title will be obtained. CHAIRMAN KOTT asked whether there is any objection to the conceptual amendment. There being none, it was so adopted. Number 1236 CHAIRMAN KOTT closed the meeting to public testimony. Number 1240 REPRESENTATIVE JAMES made a motion to move SJR 8, as amended, from the committee with individual recommendations and the attached fiscal note(s). There being no objection, HCS SJR 8(JUD) was so moved from the House Judiciary Standing Committee. HB 151 - REVOCATION OF MINOR DRIVER'S LICENSE CHAIRMAN KOTT announced that the next order of business is HB 151, "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." Number 1322 REPRESENTATIVE GREEN made a motion to adopt the proposed committee substitute, Version 1-LS0492\X, Ford, 4/23/99, as the working document before the committee. There being no objection, it was so ordered. CORY WINCHELL, Administrative Assistant to Representative Kott, Alaska State Legislature, came before the committee to present the proposed committee substitute. He stated that it includes two changes from the previous version. He directed the committee to page 5, line 1, which excludes the last part of the definition of "possessed alcohol" and noted that constructive possession was excluded. CHAIRMAN KOTT interjected and stated that the previous version removed possession, while this version inserts and defines possession. Number 1391 REPRESENTATIVE JAMES asked whether the alcohol must be in the individual's hand. MR. WINCHELL said that the individual must have the alcohol in their hand or on their person. In response to Representative James, Mr. Winchell affirmed that the individual could get rid of the alcohol in a hurry. CHAIRMAN KOTT said that the rationale was that, in order to be stopped, there is probable probable cause, such as the officer seeing an alcoholic beverage in someone's hand. Chairman Kott said, "In theory, you could in fact have it in the car when you're stopped for another violation and see a six pack in the back seat and nobody claiming it, but I'm not sure if there's another way to get around it." MR. WINCHELL noted that the previous discussion regarding the myriad of fact-patterns regarding how possession can result in the loss of a license was a policy call because constructive possession can result in the loss of a license. Mr. Winchell clarified that the intent was to ensure that the individual had the alcohol in their hand, on their person, or in the observation of a police officer in order to have probable cause established. Number 1423 MR. WINCHELL noted that the second change encompassed in the proposed committee substitute removed the youth courts because there is another piece of legislation that has youth courts within its purview. Number 1468 CHAIRMAN KOTT stated that youth courts were removed from the proposed committee substitute after discussions with the Department of Law and the potential problems. Number 1476 REPRESENTATIVE JAMES clarified that whether the youth courts were not eliminated because of its presence in another bill. MR. WINCHELL explained that he had discussed this with Anne Carpeneti [Assistant Attorney General, Department of Law]. That discussion determined that, if language permitting the youth courts to impose community service was to be included, that could rise to a level in which due process procedures would require a jury trial. Therefore, more money would be dealt with and the question would arise as to whether, "...it is within their purview to be making those kinds of determinations of probable cause issues." Therefore, the youth courts were removed. Mr. Winchell indicated that the youth court legislation which addresses other surcharge issues would be a better vehicle to address this issue. Number 1521 CHAIRMAN KOTT explained, as the bill currently stands, there is possession and consumption occurring in the vehicle; there is a tight nexus; there is a provision where an individual can reapply for a revoked license in which the compiling of sentences on these violators has been taken into consideration. Number 1559 REPRESENTATIVE JAMES inquired as to whether this is part of the "Use It, Lose It" legislation. She also inquired as to the effect this would have, specifically the language referring to "occupying a motor vehicle". Number 1578 MR. WINCHELL replied yes the bill amends certain sections of the "Use It, Lose It" law. The "occupying" language has not been researched completely. Mr. Winchell clarified that the language means that an individual is physically consuming. Number 1612 REPRESENTATIVE MURKOWSKI asked whether the definition of a motor vehicle includes a recreational vehicle (RV). She noted that some of the worst offenses of underage drinking that she has seen is drinking in a parked RV at a recreational area. MR. WINCHELL replied yes. Number 1630 REPRESENTATIVE KERTTULA noted that there are DWI (drinking while intoxicated) cases with vehicles that are not operable, which she feels is a bit unfair. It's broadly defined. CHAIRMAN KOTT expressed concern with an intoxicated individual who is in a parked car that is not running and is charged with a DWI. Number 1708 HELENE HERNDON testified via teleconference from Homer. She is a 20 year resident of Homer. The zero tolerance for underage drinking appears to be unconstitutional according to superior court rulings that have been handed down. She wondered, therefore, why a law - that is unconstitutional to begin with - is being revised. Why is this law not being repealed? She knows of at least 30 children in Homer who have lost their license, although they were not driving at the time. This is costing a lot of money and creating more complications. Ms. Herndon noted that she did not have a copy of the proposed committee substitute, Version "X." She asked whether a person can have his or her license revoked, if that person with a beer is not near a vehicle. CHAIRMAN KOTT explained that Version "X" has language that requires the establishment of a nexus between the offense being committed and the penalty. Therefore, an underage person walking along with a beer would not have his/her license revoked. MR. HERNDON inquired as to what would happen to those underage individuals who have had their licenses revoked under the previous law. CHAIRMAN KOTT said that those individuals were subject to the law of the land at that time, but he believed that those individuals could have their licenses reissued under the provisions of this bill. MR. HERNDON asked whether the "X" version is still configured so that repeat offenders would have to have in excess of one year remaining on their suspension. CHAIRMAN KOTT replied correct. That is still retained in version "X." MR. HERNDON stated that this law should be repealed rather than passed. Number 1870 LINDA WRIGHT testified via teleconference from Kenai. She expressed concern that Alaska's youth have been deprived of their due process rights. She referenced House Finance Standing Committee minutes from March 23, 1994, in which Representative Grussendorf noted his concern regarding the authority granted to peace officers. Ms. Wright read: "Ms. Knuth pointed out that a right to appeal would be available to the offender, initial action taken by the peace officer would be the same in any case, although there will be an administrative procedure and that a neutral person would act on behalf of the executive branch in a quasi-judicial function. She added that there are many process rights which accompany judicial proceedings and which would provide safeguards within the system." MS. Wright said that she did not see where the safeguards were being provided. For example, if an underage individual misses the seven day period for the hearing process, his rights are waived, which she did not believe to be constitutional. And, because probable cause seems to be so important to these laws and the hearing for review is limited by law to the issues of age and whether they possess or consumed alcohol or controlled substances; she asked when does the probable cause come in there? When do they have a chance to discuss probable cause or present evidence. She respectfully requested that the committee restore the constitutional rights for children in Alaska. Number 1984 CHAIRMAN KOTT clarified that the proposed committee substitute specifies that the underage drinker must have alcohol in their hand or on their person, which would establish probable cause. Number 2006 KEVIN HYDE, President, Good Legislation Assures Democracy (G.L.A.D.) testified via teleconference from Kenai. He has always held the position that the administrative process be revoked, and he had hoped that this committee would have removed the administrative process and returned it to the courts. Although it may seem dangerous in the current political climate to allow a vote on a law perceived by some as supportive of the use of alcohol or drugs, but it is the opinion of the majority of the members of G.L.A.D. that they do not believe it is acceptable for youth to use alcohol or drugs and such should not be endorsed. He further noted with regard to probable cause, that the committee is relying on the hearing to address the probable cause issues. Although the legislation provides a nexus for the alcohol and a motor vehicle, for which Mr. Hyde lobbied, the administrative hearing process does not allow discussion regarding that nexus. Mr. Hyde read the following from a Division of Motor Vehicles' (DMV) citation provided to an offender of this law: "If you make a final request for a hearing and you have a valid license to drive, you will get a temporary license. The temporary license lets you drive until the date of the hearing. At the hearing, the hearing officer will listen to your side of the story, however you need to focus on the reasons for the hearing. These reasons are called issues. The hearing is limited to issues regarding your case. The issues are whether you are between 14 and 21 years of age and whether the officer has probable cause to believe that you used a drivers license as false identification, possessed or consumed alcohol, possessed or consumed a controlled substance, operated a vehicle after consuming alcohol or refused to take a test to measure the alcohol content of your breath. The hearing officer will weigh the evidence and sworn testimony. The hearing officer will decide based on the evidence, whether or not to revoke your privilege to drive." MR. HYDE noted that the citation language does not permit discussion regarding the nexus to drive nor does it permit discussion on any evidence that was illegally obtained. Furthermore, discussion of an illegal search, seizure, or illegal entry into a private residence or property is not permitted. Although that may seem easy to overcome in order that underage individuals are punished for the use of alcohol or drugs, peace officers should not be rewarded for illegal procedures. He wishes that the committee will not pass the bill out today in order to address that issue. He noted that every person who has addressed G.L.A.D. has indicated their primary concern in of probable cause and that DMV can override the wishes of a court. He reminded the committee members that it is their responsibility to uphold the U.S. Constitution, as well as address the concerns of their constituents. Number 2233 CHAIRMAN KOTT asked whether Mr. Hyde is suggesting that the hearing portion be completely eliminated and allow the remedy to be before the superior court. MR. HYDE replied yes. That is his ultimate desire. He indicated that language could be added that would maintain the administrative process as a review mechanism. However, when the courts determine that an individual is not guilty, there should be no further discussion or avenue for the DMV to comment. In addition, he noted that there is no nexus for controlled substances, which are illegal. Number 2335 CHAIRMAN KOTT noted that after a determination from an administrative hearing, an individual still has the ability to take his or her case to superior court. Therefore, why not try to remedy it at the administrative level thereby eliminating the prevailing cost later on down the road? Number 2360 MR. HYDE replied in many situations, that he knows of, the court hearing occurred before the administrative process. Secondly, the process of appealing to superior court after a decision requires a $750 bond. Mr. Hyde said that these individuals who may not be able to afford the fine pay more in order to receive justice. He emphasized that this is after having a circuit court judge rule not guilty or the charges have been dismissed. Also, when the appeal process is attempted representation is necessary which is also very expensive. He understood that in an administrative situation, an individual is not entitled to a public defender. Therefore, private counsel must be hired. CHAIRMAN KOTT requested that Ms. Hensley come forward and review the administrative hearing process. Number 2455 JUANITA HENSLEY, Administrator, Director's Office, Division of Motor Vehicles, Department of Administration, stated that the administrative hearing process starts at the time the police officer ... TAPE 99-40, SIDE B Number 0001 MS. HENSLEY continued, "...possession or consumption of alcohol under Title 4." At that time, the person is provided a copy of the notice of revocation which specifies all of the administrative remedies to contest the fact that the DMV will revoke their license on the eighth day following the receipt of the notice. The individual has seven days from the day the notice is given to request an administrative hearing. If the individual fails to request an administrative hearing, that individual's license is revoked on the eighth day for either 90 days, one year, or three years. Ms. Hensley noted that the notice of revocation during the issuance of the citation is a temporary drivers license for seven days. If an administrative hearing is requested, the individual receives an extension of that temporary license, which provides the date and time of the hearing, the fact that it will be held telephonically, the fact that it can occur even if the violation is dismissed or the individual is found not guilty in court. She noted that there is a different burden of proof on an administrative hearing as opposed to a court charge. MS. HENSLEY further informed the committee that the grounds are, did the officer have probable cause to make the initial stop, did the officer see or know that the person had consumed or possessed alcohol or drugs, and did the person use a fraudulent driver's license to enter an establishment to buy alcohol. The hearing officer then takes the accused's side of the story. The accused can request that the officer be present to contest the probable cause. After the hearing, a decision regarding whether the officer had grounds for the stop, or the individual did consume or possess alcohol is made by the hearing officer at which point a decision is rendered to either revoke the individual's drivers license or to rescind the action. If the determination is to rescind the action, the individual obtains a new drivers license from the DMV after paying a duplicate fee. If the determination is to revoke the individual's license, the individual can apply for a limited license to allow for driving to and from employment. She noted that the individual has the right to file for an appeal to the superior court. If the superior court upholds the DMV's revocation, the individual has the right to further appeal to the supreme court. CHAIRMAN KOTT commented that would hardly occur for a first offense. MS. HENSLEY replied the Chairman would be surprised. Currently, there are cases in the supreme court. The supreme court has provided the DMV direction on this issue and has limited the discussion during an administrative hearing. She noted that very few cases are lost in superior or supreme court. Number 0192 CHAIRMAN KOTT asked Ms. Hensley whether a person cited under this provision could apply directly to the superior court and circumvent the administrative procedure. He thought he heard Mr. Hyde say that in some cases the court cases have occurred before the administrative hearing. MS. HENSLEY replied the court cases to which Mr. Hyde referred to were the violations. An individual that is issued a citation must go before a district court judge, which has a different burden of proof than an administrative hearing. That is the big difference. CHAIRMAN KOTT indicated they are separate issues then. Number 0237 REPRESENTATIVE ROKEBERG asked Ms. Hensley whether the hearing officers inform the individuals that they have the right to apply for a temporary license. Is it mandated or just a requirement? MS. HENSLEY replied the officer is required - by law - to read the notice to the individual at the time of issuance, which says they have the right to an administrative hearing and that the temporary license is a seven day permit to drive and they have to ask for a hearing with those seven days. Number 0276 REPRESENTATIVE ROKEBERG specified that he was referring to the limited license for travel to and from employment. Does the hearing officer have to inform the individuals that they have the right to apply for the limited license? MS. HENSLEY replied there is not a mandate requiring the hearing officers to notify the individuals of their right to apply for a limited license. However, that is the practice and there is a follow-up with printed information detailing the restrictions and application procedure for the limited license. Number 0310 REPRESENTATIVE ROKEBERG said: "Mr. Chairman just to follow-up to get this point straight. I mean, there's a piece of paper that is...What if we're out of paper? My point is, is anybody that's before the hearing officer, could he or could that person not be informed he had a right to apply for a limited license?" MS. HENSLEY stated that the individual is advised - at the time of the hearing - of the ability to apply for a limited license. REPRESENTATIVE ROKEBERG asked Ms. Hensley whether that is in statute or regulation. MS. HENSLEY replied it's in neither one. It is part of the hearing officers' procedures as specified in their manual. Number 0343 REPRESENTATIVE ROKEBERG asked Ms. Hensley how many people come before a hearing and do not lose their license. He also inquired as to how many people apply for and are granted a limited license. MS. HENSLEY replied that she does not have those numbers, but offered to provide that information to him later. She noted that 25 percent of individuals, minors and adults who have lost their license for administrative proceedings, request an administrative hearing to contest the DMV's revocation. Number 0381 REPRESENTATIVE ROKEBERG asked Ms. Hensley whether there is any indication on that notice that a person can apply for a limited license. MS. HENSLEY replied that the notice says a limited license can be requested. She offered to provide a copy of the notice to the members. Number 0404 REPRESENTATIVE ROKEBERG referred to Section 5 of the proposed committee substitute, and asked Ms. Hensley whether the revocation for two years is the standard. MS. HENSLEY replied the first offense is 90 days, the second offense is 1 year, and the third offense is 3 years. Number 0428 REPRESENTATIVE MURKOWSKI referred to Section 6 of the proposed committee substitute, which provides for the review hearing, and asked whether there is anything that could be added to what is considered at the hearing in order to ensure a greater level of due process. Number 0473 MS. HENSLEY stated that there could be additions to the statutes regarding what the hearing officer can hear. Number 0485 REPRESENTATIVE MURKOWSKI understood Ms. Hensley's earlier statement regarding the DMV's direction from the courts that the age of the individual and the determination of probable cause are what can be heard. MS. HENSLEY said that was because the statute is limited to those issues. In cases that went beyond what's in statute and looked at other issues, the court came back and said the hearing officer can only look at what is in statute. Number 0514 ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, clarified that at the administrative hearing the burden of proof is preponderance of evidence not probable cause. The hearing officer has to decide that it's more likely than not - 51 percent - the child was drinking and between the ages mention. The probable cause is the standard that the police officers use in deciding to take a license. Ms. Carpeneti informed the committee that the department still opposes the nexus in the proposed committee substitute because practically the only people whose licenses would be taken away are minors who police officers see drinking or holding a beer in a car. That is likely to be very few because most kids are bright enough not to do that. Under the proposed committee substitute, a minor who drinks at a party and then gets into a car would not have his/her license revoked. CHAIRMAN KOTT invited Mr. Cory Winchell to come back to the table for closing comments. REPRESENTATIVE ROKEBERG interjected and asked Mr. Winchell to clarify Ms. Carpeneti's comments on a roaring drunk kid in a car. MR. WINCHELL said, if that roaring drunk kid gets behind the wheel of a car, he will get his license taken away. The attempt is to curtail all of the administrative revocation hearings that are occurring for possession issues. In addition, the due process for an administrative hearing has been established by the supreme court as the right to notice and the right to be heard by an impartial officer, which are being met under the citation It is a preponderance of the evidence hearing, therefore, due process is being satisfied. It's a policy call on the part of the legislature whether or not to raise the due process procedures to a superior court level. He reiterated, under the proposed committee substitute, a person has the right to be heard before a hearing officer, and for all intents and purposes they do a good job. Number 0689 REPRESENTATIVE ROKEBERG commented that one of the problems with this law is the perception - on the part of the youth - of the unfairness with regards to the nexus. Number 0730 MR. WINCHELL said that he is not married to the language of the nexus. Number 0741 CHAIRMAN KOTT recognized the difficulty of the parameter and noted that he is not married to the language of the nexus either. Number 0777 REPRESENTATIVE GREEN understood that part of the problem is the word "consumption" and it occurring in the vehicle. Is there a way around that be going back to under the influence? he asked. Number 0809 MR. WINCHELL replied yes language could be added that specifies if an individual consumes alcohol and then enters and occupies a car, that individual can have their license revoked. Number 0846 REPRESENTATIVE GREEN commented that he doesn't want to punish an individual for taking an intoxicated driver home. On the other hand, without tight language, there would be problems. Number 0870 MR. WINCHELL clarified that if the person has not possessed or consumed alcohol, that person would not have his/her license revoked. The issue is the intoxicated person in a vehicle who would have his/her license revoked. Number 0898 CHAIRMAN KOTT reminded the committee that in order for an officer to stop a car there must be probable cause or some other violation, at which point, the officer would see a person passed out in the car or smell alcohol or whatever. MR. WINCHELL said, "It's a hard policy call. I don't envy you." Number 0925 MS. HENSLEY clarified that, if there is an inebriated person between the age of 14 and 21 and drives, that person would be charged as an adult for drunk driving. CHAIRMAN KOTT said that, if an intoxicated minor is passed out in the back seat, that minor would be cited for underage drinking. MS. HENSLEY said that is true right now. Under the proposed committee substitute, the officer would have to see the minor consuming the alcohol not just passed out in the car. CHAIRMAN KOTT said that the minor would still be subject to the underage drinking law, although it may not fall under the "Use It, Lose It" provision. MS. HENSLEY replied yes. Number 0982 REPRESENTATIVE CROFT stated, under the proposed committee substitute, a parent would not be able to drive his/her child home, without risking the loss of that child's license. Number 1011 REPRESENTATIVE ROKEBERG inquired as to whether the consumption-by-a-minor statute is clear enough to be adopted by reference. CHAIRMAN KOTT deferred the question to Ms. Carpeneti. Number 1090 REPRESENTATIVE ROKEBERG asked whether there is an affirmative defense for minor possession or consumption, if there is an adult with the minor. Number 1123 MS. CARPENETI believed that it is not against the law for a parent to furnish alcohol to his/her child in the home. In addition, she does not believe there is an affirmative defense for minor consuming per se, if the alcohol is furnished by a parent or an adult. Number 1158 REPRESENTATIVE CROFT said: "So, they can provide it. It's just--it's still illegal for their child to drink it." MS. CARPENETI replied yes. Number 1173 REPRESENTATIVE GREEN asked whether consuming alcohol outside of a vehicle would be an excuse. MS. CARPENETI replied it would take a person out of the "Use It, Lose It" law. REPRESENTATIVE GREEN noted that the person could operate a car after consuming alcohol and he would be adjudicated under a different law, but he would not necessarily lose his license. MS. CARPENETI said, "That's correct." Number 1234 REPRESENTATIVE ROKEBERG clarified that what is being addressed is consumption prior to occupying the vehicle because once inside a vehicle this kicks in. REPRESENTATIVE GREEN asked whether that is the intent. REPRESENTATIVE ROKEBERG replied it is, but that's not how the bill is drafted. Number 1276 CHAIRMAN KOTT stated that there is the language "occupying" and "operating." REPRESENTATIVE ROKEBERG replied he is referring to consumption prior to having consumed alcohol and being in a vehicle. CHAIRMAN KOTT said that a person who consumes alcohol prior to entering a vehicle is subject to the "Use It, Lose It" law. REPRESENTATIVE GREEN said no not if a person drinks alcohol before getting into a vehicle. Number 1302 REPRESENTATIVE KERTTULA asked Ms. Carpeneti whether she is correct in saying, if an individual is drinking while intoxicated, the DWI penalty is still in place to revoke the license. That is never going to go away. MS. CARPENETI replied yes. CHAIRMAN KOTT stated he is talking about the passenger. Number 1318 REPRESENTATIVE GREEN said: "But, we're saying if he operated a vehicle and he consumed the stuff--the way it's written now--he got wasted at a party and then went after him, he doesn't lose his license because of this." REPRESENTATIVE KERTTULA replied, if the individual operates a vehicle, that individual would lose his/her license because of DWI laws. REPRESENTATIVE GREEN said what difference does it make whether a person consumes alcohol before or after he's in a car. Number 1365 CHAIRMAN KOTT clarified that the language - "and the possession or consumption occurred while occupying a motor vehicle" - addresses the issue of the the passengers, not the operators. REPRESENTATIVE GREEN indicated the language needs an "or" in front of "operator." Number 1409 MS. CARPENETI recommended that the drafter make paragraphs out of these for clarity. REPRESENTATIVE ROKEBERG suggested inserting another paragraph, which would use language such as, "consumption prior to occupancy of the vehicle." REPRESENTATIVE MURKOWSKI suggested the language, "prior to or while occupying the vehicle." CHAIRMAN KOTT said the language should send the message that if a person is underage and has been drinking that person should not get into a vehicle no matter who's driving. He noted that the bill has come full circle. He wondered whether it would work under the guise of adult supervision. Number 1517 CHAIRMAN KOTT called for an at-ease at 3:05 p.m. and called the meeting back to order at 3:15 p.m. CHAIRMAN KOTT inquired as to the wishes of the committee members. He noted that the bill has a further referral to the House floor. He is out of suggestions other than to tie the act of drinking in or out of the vehicle to the "Use It, Lose It" law, which he is not comfortable with. Number 1628 REPRESENTATIVE ROKEBERG moved to report CSHB 151(JUD) [Version LS0492\X, Ford, 4/23/99] out of committee with individual recommendations and the attached zero fiscal note. There being no objection, it was so moved from the House Judiciary Standing Committee. ADJOURNMENT CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 3:20 p.m.