MINUTES  SENATE FINANCE COMMITTEE  April 09, 2002  9:47 AM  TAPES  SFC-02 # 51, Side A SFC 02 # 51, Side B   CALL TO ORDER  Co-Chair Pete Kelly convened the meeting at approximately 9:47 AM. PRESENT  Senator Dave Donley, Co-Chair Senator Pete Kelly, Co-Chair Senator Jerry Ward, Vice Chair Senator Loren Leman Senator Lyda Green Senator Gary Wilken Senator Alan Austerman Senator Donald Olson Also Attending: REPRESENTATIVE NORM ROKEBERG; JANET SEITZ, Staff, Representative Norm Rokeberg; ANNE CARPENETI, Criminal Division, Department of Law Attending via Teleconference: From Mat Su: JACKIE SWAYNE; Offnet: LIEUTENANT JULIA GRIMES, Department of Public Safety; Offnet: LINDA WILSON, Deputy Director, Public Defender Agency, Department of Administration; From Anchorage: MARTI GREESON, Mother's Against Drunk Driving; JAMES WANAMAKER, Judge, Anchorage Wellness Court; BOB BAILEY, Co-Chair, Mayor of Anchorage's Driving While Intoxicated Task Force; RICHARD PAYNE, Attorney, Civil Division, Municipality of Anchorage; MARY MARSHBURN, Director, Division of Motor Vehicles, Department of Administration; BRUCE ROBERTS, City Prosecutor, Municipality of Anchorage; JANET MCCABE, Partners for Progress SUMMARY INFORMATION  HB 4-MOTOR VEHICLES & DRUNK DRIVING The Committee heard from the bill's sponsor, the Department of Public Safety, the Department of Law, and the Department of Administration and took public testimony. A committee substitute was adopted, and the bill was held in Committee. [Note: There is a loud buzz on this recording tape and portions of the tape are difficult to hear.] SENATE CS FOR CS FOR HOUSE BILL NO. 4(JUD) "An Act relating to motor vehicles and to operating a motor vehicle, aircraft, or watercraft; and providing for an effective date." This was the second hearing for this bill in the Senate Finance Committee. Co-Chair Donley offered a motion to adopt SCS CS HB 4, 22-LS0046\M as a working draft. There being no objection, the committee substitute was ADOPTED as a working draft. REPRESENTATIVE NORM ROKEBERG, the sponsor of the bill, explained that the previous version of the bill resulted in fiscal notes of approximately $4 million. He stated Version "M" reduces costs associated with the bill, and he explained the fiscal savings resulting from incorporating such changes as making treatment programs voluntary instead of mandatory while incarcerated; deleting language pertaining to registration plate seizures; eliminating all increases in minimum sentences except for manslaughter; and eliminating all mandatory forfeiture language for misdemeanors but retaining mandatory forfeiture for felonies. Representative Rokeberg voiced his desire to retain the language regarding confiscation and forfeiture of vehicles upon a third Driving While Intoxicated (DWI) misdemeanor, which is considered a felony if it occurs within a specified number of years of the first two offenses. He noted that the Municipality of Anchorage and the City of Fairbanks have forfeiture provisions and commented that the Municipality of Anchorage confiscated 12 vehicles the prior year. Representative Rokeberg stated the bill continues to include language regarding increased fines for DWI offenses and refusal to be administered a drug test; specifies that municipalities could adopt more stringent standards than the State for the impoundment or forfeiture of motor vehicles involved in DWI offenses; changes the name of the offense from Driving While Intoxicated (DWI) to Driving Under the Influence (DUI); adds inhalants to the offenses; increases fees for reinstating a license after a DUI conviction; allows Courts the ability to levy fines and consider jail-term reductions for such things as completion of a therapeutic court program or court ordered treatment program; and clarifies certain areas of the law regarding the house arrest/electronic monitoring program. Representative Rokeberg shared with the Committee that in order to keep this bill moving through the legislative process, some expensive components of the bill were removed. Overall, he stated, when the increased revenue resulting from the new fines structure is factored in, Version "M" should not generate a net expense and might generate revenue. Senator Green, referencing the sponsor's letter dated April 8, 2002 [copy on file], asked for further explanation of the term "refusal." Representative Rokeberg explained that the term "refusal" pertains to a person's refusal to consent to a chemical sobriety test. Co-Chair Donley inquired if the "reduced penalty" program, which allows the Court System the ability to lower fines and jail time for those individuals who have successfully completed a therapeutic court program or court ordered treatment program, is available to repeat offenders. Representative Rokeberg responded it is. Co-Chair Donley asked if there is a limit to the number of times a repeat offender could get a reduction in fines or jail-time for participating in these programs. Representative Rokeberg responded there is "no statutory barrier" to the number of times a judge could direct a person with multiple DUI offenses to enroll in a treatment program. He noted the idea being that even an individual who has attended a treatment program previously could further benefit from participating in and successfully completing the program. Co-Chair Donley contended that a "successful completion" of the program is garnered by simply attending classes; it does not mean the person has overcome the problem. Representative Rokeberg concurred and stated the current bill provides for up to a 75 percent penalty reduction for successful completion of the program; however, he would not be opposed to lowering the maximum penalty reduction to 50 percent. Senator Hoffman, referring to the mandatory revocation of a vehicle's registration or confiscation, inquired as to what occurs when a vehicle is registered in both a husband and wife's name. JANET SEITZ, Staff to Representative Norm Rokeberg, directed the Committee to the Remission of Forfeitures provision on page 33, Section 51, of the committee substitute, which requires the State to provide to every person who has an ownership interest or a security interest in a vehicle the right to intervene to protect their interest. She explained that the procedure would entail the non-offending person to attend a hearing, establish their interest in the vehicle, and verify they were not a party to the offense. She explained that the Court could then either order the vehicle to be released to that person or order an amount equal to that person's interest in the vehicle be paid. Senator Hoffman inquired how the process would unfold if this involves the family's only vehicle. Ms. Seitz stated the person could approach the Court and ask for the vehicle to be released. Senator Hoffman commented this process might take up to two weeks. Ms. Seitz stated the purpose of this provision is to separate the offender from the vehicle. Senator Olson asked if this bill has any effect on snowmachines or four-wheelers, which are modes of transportation in Rural Alaska. Representative Rokeberg stated the bill's provisions would apply to these machines. Senator Olson surmised these machines could be confiscated. Representative Rokeberg clarified they could be, but only upon the third DWI offense. Senator Olson asked for further explanation of a limited driver's license. Representative Rokeberg replied that a limited driver's license could be issued to an individual whose lack of a driver's license would affect their ability to work. Senator Olson asked for further information about driving without vehicle liability insurance. Representative Rokeberg explained this bill would require individuals to present proof of insurance when registering a vehicle. He noted that existing State law mandates vehicles to have liability insurance; however there is no enforcement procedure in place. He continued that the option of mandating insurance companies to notify the State when vehicle coverage is cancelled would result in a Department of Public Safety fiscal note of approximately $2 million due to the need to maintain computer systems, store the insurance information, and coordinate with insurance companies. He stated, due to the expense, this requirement is not included in the bill; however, if the Committee wished to include a fiscal note to cover the expense of having insurance companies notify the State when a vehicle's coverage is cancelled, he would be supportive of it. Senator Olson stated some vehicles, particularly off-road vehicles, utilized in remote areas of the State with limited road systems, are not often registered. Representative Rokeberg stated there is a provision in the bill supporting local government control of certain regulations, but that vehicles used on "roads in the State" should be registered. Senator Olson reminded the Committee that not all roads are State roads. Representative Rokeberg concurred. Senator Ward asked Representative Rokeberg to further explain Section 31, subsection (4) on page 20. Representative Rokeberg stated this section would allow for electronic monitoring as a condition of the sentencing. Senator Ward clarified that this language would not affect the mandatory sentencing time for multiple offenders, and "the jail- time would remain in place." Representative Rokeberg concurred. JACKIE SWAYNE testified via teleconference from Mat-Su to voice support of this bill. She reminded the Committee that the Legislature appropriated money in 1989 and 1990 that was never expended, for the purchase of ignition electronic locking devices for vehicles. She stated these devices would, "in effect," prevent a drunk driver from driving by not allowing a car to start. She informed the Committee these devices have been documented as effective, and cost as low as $500 per unit. She also informed the Committee that on the average, an alcoholic would drive drunk between 200 and two thousand times before receiving their first DUI conviction. She stressed that "taking away their license" would not prevent an alcoholic from drinking and driving, and national statistics indicate that incarceration is also not a deterrent nor does it seem to be rehabilitative. She stated that the interlock device would prevent an alcoholic from starting their car, and there is currently legislation being considered at the federal level that would require states to use the ignition interlock systems. She commented that Alaska's prison population includes hundreds of inmates who are incarcerated on alcohol related charges. She reiterated that the use of the ignition interlock devices would assist in reducing the number of repeat drunk drivers. LIEUTENANT JULIA GRIMES, Department of Public Safety, testified offnet to voice that the Department of Public Safety supports Version "M" of the bill. Senator Ward asked what is the legal limit for impairment in Alaska for aircraft and commercial vehicle operators. Lieutenant Grimes stated that the legal intoxicated level for regular drivers is 0.08 blood alcohol content level (BAC) or higher and it is 0.04 or higher for commercial vehicle drivers. Senator Ward asked why the limit for commercial vehicles and pilots is lower than the 0.08 BAC limit for regular drivers. Lieutenant Grimes speculated they are "held to higher standards." Co-Chair Kelly stated commercial drivers' BAC levels comply with federal standards and added that aircraft pilots cannot consume alcohol within twenty-four hours of flying. Lieutenant Grimes clarified that recent changes specify that pilots cannot fly within eight hours of consuming alcohol. Senator Ward declared "this is one of the flaws in the bill," for the 0.08 level allows people multitude opportunities to drink and drive, whereas commercial drivers and pilots would lose their license after their first offense. He contended the 0.04 level could be reached before consumption of an entire drink. He stated that after the first offense, the State still allows drivers to have "that second drink." He voiced that the ignition-locking device on cars would assist in preventing repeat drivers from having the opportunity to drink and drive again. He stressed that the State should hold repeat drunk drivers to the 0.04 BAC level, and if the State is attempting to reduce the number of repeat offenders, this lower level for repeat offenders should be included in this bill. Representative Rokeberg reminded the Committee the State's tolerance limit was recently lowered to 0.08 from the previous 0.10 BAC level, and there is also a recently enacted chargeable offense impairment statute under which a 0.04 BAC level could apply. He noted that a toximeter test administered at the police station is usually routine to double check a BAC level; however, it is rare to have anybody charged and convicted under the current statute. He acknowledged the validity of Senator Ward's comments, but stated that current statutes could address them. Senator Ward informed the Committee that the therapeutic treatment programs clearly inform their enrollees that if they were apprehended a second time for driving with a 0.08 or higher BAC level, they would be convicted of a DUI. He stressed that the Legislature should mandate the programs to specify that if a person has one drink and registers a 0.04 level; they would be convicted of a second DUI and would spend 20 days in jail. He insisted therein lies the problem, as the 0.08 BAC level authorizes people to have one drink; however, an alcoholic cannot "have just one drink." He reiterated that the 0.04 BAC level would deter people from having that second drink. Senator Hoffman, referencing the Department of Public Safety's fiscal note, stated its analysis specifies that arrangements for vehicle storage is not included in the fiscal note; however, it appears to be included in the note as money is earmarked for storage under both the second and third offense. He asked what the amounts specified cover. Lieutenant Grimes responded the costs are for security of currently stored vehicles, and noted that long-term storage costs would change the note. Senator Hoffman asked if vehicle storage is only available in Anchorage, Palmer and Fairbanks. Lieutenant Grimes responded that is correct and vehicles would need to be transported from rural areas to these three facilities to assure they are stored in a safe place. Senator Hoffman asked if vehicles confiscated in Nome, Barrow and other remote areas would need to be flown to one of these three storage areas. Lieutenant Grimes responded that is correct, as storage areas could not be secured in those areas. She stated that transportation costs are reflected in the fiscal note. Co-Chair Donley, noting Lieutenant Grimes' remark that the Department of Public Safety supports Version "M" of the bill, inquired as to the Department's view on permitting repeat drunk driving offenders a 75 percent reduction in jail-time sentencing if they successfully complete a court ordered treatment program. He communicated his understanding of the bill's current language to be that even fifth time offenders could still qualify for reduced sentencing if they successfully participated in a treatment program. Ms. Seitz specified that the language would allow the Court System to reduce the sentence by up to 75 percent of the minimum mandatory time. Co-Chair Donley stated this could mean the Court could specify that a person receive no jail time. Ms. Seitz responded that if a person successfully completes the Court ordered treatment program, "and the Judge felt it was warranted, then yes." She continued that the program could take as long as 18 months to complete, and that the offender is extensively monitored while participating in the program, including: house arrest, electronic monitoring, and a strict schedule of their time when not at the treatment program. Co-Chair Donley asked if the Department of Public Safety supports the sentencing reduction. Lieutenant Grimes responded, "it has not been shown that keeping someone in jail for a particularly long time is going to keep them from getting into a vehicle, any vehicle, and driving drunk because of the fact, that the bottom line is that they are an alcoholic and they will steal a vehicle, they will borrow a vehicle." She referenced Ms. Swayne's comments that extensive jail time does not make a huge difference in that behavior. She stated a treatment program could be successful. Co-Chair Donley clarified Lieutenant Grimes' comments as indicating support of the possibility of no jail time for repeat offenders. Lieutenant Grimes replied she would like to review the bill's language before commenting further. Co-Chair Kelly requested Lieutenant Grimes submit the Department's position on Co-Chair Donley's question. MARTI GREESON, representing Mother's Against Drunk Driving (MADD) testified via teleconference from Anchorage to voice that MADD supports HB 4 and understands the changes the bill has experienced. SFC 02 # 51, Side B 10:35 AM Ms. Greeson noted offenders participating in court ordered therapeutic treatment programs are closely monitored, are required to comply with many set standards including where they are employed and who they could associate with, and have to notify program administrators of their whereabouts. She stressed these provisions result in tight controls of individuals enrolled in the programs. She noted that MADD supports the flexibility of "actual" jail time for individuals who have successfully complied with a court ordered treatment program. She informed the Committee that Alaska ranked number one in the nation in the percentage of traffic deaths resulting from drunk driving in 2001. She stated there is current legislation being considered by the Legislature that would place an additional tax on the sale of alcoholic beverages. She opined that this could be an avenue through which to bring in needed revenue to the State. AT EASE 10:37 AM / 10:39 AM Co-Chair Donley asked if MADD agrees "there should be a cutoff point" as to the number of times a repeat offender could participate in a court ordered treatment program that would make them eligible for lesser jail time. Ms. Greeson replied yes, if a person has completed a court ordered treatment program it should "not be a consideration in the future." Co-Chair Donley asked if MADD agrees there should be a limit as to how many times an offender participates in the program. Ms. Greeson stated that if someone has a history of drunk driving with no interventions, there "should be that availability for consideration for intervention." Co-Chair Donley concluded from Ms. Greeson's remarks that MADD does not agree "there should be a cutoff" on the number of times a person could participate in the treatment programs. Co-Chair Kelly stated that if Ms. Greeson wished to comment further to Co-Chair Donley's question, she could contact his office. He asked for confirmation that she is speaking on behalf of MADD. Ms. Greeson expressed she is speaking on behalf of MADD. LINDA WILSON, Deputy Director, Public Defender Agency, Department of Administration testified offnet to voice appreciation to the sponsor and his staff for allowing the Agency to participate in the drafting of this bill. She noted this cooperative effort has allowed the Agency to gather information "both formally and informally" in the process. Ms. Wilson stressed the Agency recognizes that driving under the influence is a serious problem in the State. She informed the Committee that this Legislature has "made the most sweeping changes to Alaska's drunk driving laws in many years." She stated these changes, which include "the lowering of blood alcohol content level to 0.08, the lengthening of the look-back provisions for felony DWI's, and well as the removal of the 10-year limitation on prior convictions have greatly expanded the reach of State laws on not only repeat drunk driving, but first time drunk driving as well." Ms. Wilson remarked that the expansion of the authorization for search warrants for blood to be obtained in drunk driving cases was important; however, "most importantly" the Legislature created a new Therapeutic Court pilot project in conjunction" with the other drunk driving legislation. She voiced appreciation on behalf of the Public Defenders Agency for the support Therapeutic Courts received, and stated that with sufficient resources, these Therapeutic Courts would "have a positive impact in reducing recidivism and will make Alaska a safer place to live." Ms. Wilson reminded the Committee these Therapeutic Courts were new, some established within the prior six months and results cannot yet be determined. She urged the Committee to not increase penalties or jail-time without first giving the Therapeutic Courts time to be effective. She asserted that the Therapeutic Court and the effects of the new laws have not being allowed sufficient time to be studied. She stated these new laws do not yet need to be supplemented with the language in this bill, as "it would be best to wait and see and more closely assess the affects of the new laws before enacting any additional related laws." Ms. Wilson reiterated that increased fines and jail-time have not proven very effective historically in combating drinking and driving, and urged the Committee to give the recently enacted laws time to be effective. She stated she would like to make some brief comments on Version "M." Co-Chair Kelly, for the sake of time, asked Ms. Wilson to instead, forward those comments in writing to the Committee. Co-Chair Kelly requested all testifiers to incorporate an answer in their testimony to Co-Chair Donley's question regarding how many times a repeat offender could participate in a court appointed treatment program which could allow for an up to 75 percent reduction in jail-time. JAMES WANAMAKER, "a judge who presides over misdemeanor wellness courts," testified via teleconference from Anchorage to comment that an earlier version of this bill mandates offenders to: participate in a Wellness Court, be sober for 18 months, and be tightly monitored and tested. He stated that, additionally, a limited license could be granted to these individuals so they could get to work. He stressed that this version of the bill includes new language that would allow other programs to be approved for treatment that he considers not as effective. He urged the Committee to consider "tightening the bill back up to the earlier version." Mr. Wanamaker, responding to Co-Chair Donley's question, stated he has seen people in the treatment program more than five times who have a "continuing misadventure with alcohol." He stated; however, that "once they get sober, its all over. Those who dedicate themselves most strongly to the program are those who are disgusted with themselves." He stated he would not take away the benefits for those with repeated offenses for once they succeed at sobriety, "we won't see these people again." BOB BAILEY, Co-Chair, Anchorage Mayor's Task Force on DWI, testified via teleconference from Anchorage to voice support for the provisions in this bill including mandatory forfeiture of a vehicle, revocation of vehicle registration, and the ability for local governments to have "more stringent regulations." He remarked that the Task Force strongly supports the Therapeutic Court model. He informed the Committee that in the summer of the year 2000, the Task Force heard hours of public testimony on the issue of DWI and found that "the brightest hopes on the horizon for this offense is the Therapeutic Court model." He stated one of the most important aspects of that model is to offer someone the hope that upon completion of the program, and demonstrating sobriety over a long and monitored program, "then the Judge must have the ability to shorten the sentence and reduce fines." Mr. Bailey stated that although the Task Force did not discuss Co- Chair Donley's question, he expressed there should not be a limit placed on the number of times a person could participate in a treatment program as the goal is to bring an offender to sobriety and to not offend again and "if this is the way to do it then we should not remove that incentive." He stated that removing that incentive and just putting people in jail for a long period of time, would result in them re-offending when they were released from jail. Co-Chair Donley wished to clarify that his question does not pertain to someone who has never participated in the program but rather to those who are repeat offenders. He noted that repeat offenders could avoid jail time, under this bill, if they enroll in a court approved therapy program. RICHARD PAYNE, Attorney, Civil Division, Municipality of Anchorage, testified via teleconference from Anchorage that he is in charge of the city's vehicles' forfeitures and impoundment program. He stated he is available as a resource on how to manage this type of program. MARY MARCHBURN, Director, Division of Motor Vehicles, Department of Administration, testified via teleconference from Anchorage to echo Ms. Wilson's comments regarding the bill. She additionally voiced her appreciation to the sponsor and his staff for drafting this bill and consulting with the Department. Ms. Marchburn voiced concern with the language on page 11, line 23 of the bill, which addresses making a limited license available upon completion of a Therapeutic Court program. [Audio is indiscernible on this segment of the tape]. She continued that the Therapeutic Court is new and has many merits, and agrees with Ms. Wilson that the results of the program should be seen before multiple offenders are allowed to drive again, particularly if they had refused to take a "breath test." She finished by stating this provision in the bill needs to be rethought. BRUCE ROBERTS, City Prosecutor, Municipality of Anchorage, testified via teleconference from Anchorage to respond to Co-Chair Donley's question. He explained to the Committee that, in practice, in the Anchorage Courts, it is common to allow a portion of fines suspended to give incentive for offenders to pay for the cost of the treatment program. He stressed that if treatment is not provided in custody, it is prudent to provide an incentive to people so they would commit to the treatment on their own. He disclosed that currently in the Anchorage Therapeutic Court, the people who attend the program attend without a time reduction incentive; however, they may receive the mandatory minimum jail- time. He noted there is a waiting list to get into these programs. JANET MCCABE, Partners for Progress, testified via teleconference from Anchorage and emphasized that an absolutely essential provision is one allowing judges the option to reduce sentences for completion of the 18-month Wellness Court program. She stressed the need for this provision, and declared that to some people, the desire to be able to drive could be just as much an incentive to enroll in a treatment program as the desire to get sober. Ms. McCabe stated, in answer to Co-Chair Donley's question, that treatment programs should be available to repeat offenders. She also voiced support of allowing people who graduate from the 18- month therapeutic Wellness Court to get a temporary license as it is a powerful incentive for people to complete the program and assists in keeping people "heading on the right course" as constructive members of society. Senator Ward commented that not all people who are convicted for a DWI are alcoholics, but he would like to treat them as such. He referenced Mr. Roberts's comment that after a person successfully completes the 18-month Wellness Program, they would remain sober. Senator Ward stated that current law of 0.08 blood alcohol content level would allow those individuals to have a drink and drive after completion of the program, and he supports this level being lowered for repeat offenders to 0.04 BAC. He asked the logic of not permitting an individual in the treatment program to have a drink for 18 months, and then, as soon as they have completed the program, they would be able to consume alcohol and drive. Mr. Roberts agreed with Senator Ward, and stated when he sentences DWI offenders, he not only specifies they enroll in a treatment program, but additionally includes a provision that that person, when on probation, cannot possess or consume alcohol. Senator Ward maintained that people who are convicted more than one time of a DUI are a problem and should be treated as an alcoholic and qualify for the 0.04 BAC level policy that commercial drivers and pilots adhere to. [Audio recording problems made Co-Chair Kelly's response indiscernible.] ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law addressed the Department's concerns with certain components of bill such as the mandatory vehicle forfeiture provision, and the allowance of limited licenses for DWI drivers who have refused a breathalyzer test or have been convicted of driving with a suspended license. She additionally voiced concern that the Department of Motor Vehicles would be able to issue limited licenses, as that Department does not have full access to the criminal justice records that the Department of Law does. Ms. Carpeniti, referencing page 23 of Version "M," stated that the language allowing for a reduction in sentence if a person completes a court ordered treatment program should have the approved programs defined, as the language does not adopt standards for a therapeutic program, nor specify where the programs are available. She stated that other than these concerns, the bill has many good components. Senator Ward inquired if treating repeat DWI offenders differently than other people by specifying their BAC legal limit be 0.04 instead of 0.08 would be permissible under the Constitution. Ms. Carpeneti stated she has not done any research on this. Senator Ward asked Ms. Carpeneti to have the Department of Law research the question of the legality of requiring a repeat offender to be subject to a 0.04 BAC standard. Ms. Carpeneti stated this is a serious concern, and she would investigate it. Senator Ward stressed the need to get the message to people that they could not drink and drive. Representative Rokeberg commented that the 18-month Wellness Court Program is a very good program, but it is difficult to get into. He continued this is the reason the language in the bill is expanded to include other court approved treatment programs. He agreed that there is a need to further define what those programs should be. Representative Rokeberg stated he would work with the Committee to draft another committee substitute that would address defining the treatment programs as well as addressing the concerns with the limited driver's license. Co-Chair Kelly stated the new committee substitute should address these concerns and others identified by Committee members. Co-Chair Donley, responding to Senator Ward's concern about the 0.04 BAC limit, explained there is a rational basis test administered by the Court that involves equal protection under State Law which could justify this lower level. [There are audio quality problems at this segment of the tape.] Senator Ward stated that "holding people accountable" for their actions would assist in overcoming the problem caused by repeat offenders. He complimented the role of the Therapeutic Court. Co-Chair Kelly ordered the bill HELD in Committee. ADJOURNMENT  Co-Chair Pete Kelly adjourned the meeting at 11:20 AM.