SENATE JUDICIARY COMMITTEE May 11, 1999 1:44 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator Dave Donley Senator Johnny Ellis MEMBERS ABSENT Senator John Torgerson COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 151(JUD) am "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." -HEARD AND HELD CS FOR HOUSE BILL NO. 214(JUD) "An Act relating to litigation involving correctional facilities; and amending Rules 59(f), 60(b), 62, and 65, Alaska Rules of Civil Procedure." -MOVED CSHB 214(JUD) OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION HB 151 - No previous Senate action. HB 214 - See Judiciary minutes dated 5/10/99. WITNESS REGISTER Cory Winchell Legislative Aide to Representative Kott Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Testified for the sponsor of HB 151 Juanita Hensley Division of Motor Vehicles Department of Administration PO Box 110200 Juneau, AK 99811-0200 POSITION STATEMENT: Supports the proposed Senate Judiciary Committee substitute to HB 151. Anne Carpeneti Assistant Attorney General Department of Law PO Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Commented on the House and Senate versions of HB 151. Thomas Wagner 416 Harris, No. 206 Juneau, AK 99801 POSITION STATEMENT: Favors CSHB 151(JUD) but requests the bill be amended to include marijuana offenses. Tom Findley 350 North Franklin St. Juneau, AK 99801 POSITION STATEMENT: Commented on HB 151 Robert Buttcane Division of Family & Youth Services Department of Health & Social Services PO Box 110630 Juneau, AK 99811-0630 POSITION STATEMENT: Supports the Senate Judiciary Committee version of HB 151. First Sergeant Hudson Alaska State Troopers 5700 E Tudor Rd. Anchorage, AK 99507-1225 POSITION STATEMENT: Commented on HB 151 Mr. Kevin Hyde GLAD (Good Legislation Assures a Democracy) Kenai, Alaska POSITION STATEMENT: Commented on problems with the existing law Bill Parker, Deputy Commissioner Department of Corrections 4500 Diplomacy Dr., Ste 207 Anchorage, AK 99508-5918 POSITION STATEMENT: Supports HB 214 ACTION NARRATIVE TAPE 99-31, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting to order at 1:44 p.m. Present were Senators Halford, Donley, Ellis and Taylor. The first order of business to come before the committee was HB 151. HB 151-REVOCATION OF MINOR DRIVER'S LICENSE CHAIRMAN TAYLOR informed participants that legislative staff worked with representatives of the Departments of Law and Administration to incorporate suggested changes into a Senate Judiciary committee substitute. CHAIRMAN TAYLOR pointed out the new version does not include a provision stating that if a person is found not guilty by a court, that verdict would rescind any administrative revocation that occurred because of the same violation. CORY WINCHELL, staff to Representative Kott, sponsor of the measure, responded that Representative Kott would consider that provision to be a friendly amendment however it was discussed in the House Judiciary Committee but the problem of entangling issues was not resolved. He stated if the Division of Legal Services and the Senate do not find that issue to be problematic, Representative Kott would favor its inclusion in the bill. MR. WINCHELL explained the House version of the bill. Several years ago the Legislature passed a "use it and lose it" law in an attempt to curb teen alcohol and drug use with respect to driving. At that time the Division of Motor Vehicles (DMV) anticipated 2500 revocations would occur each year. The actual number increased to 9,000 revocations per year of which 4800 resulted in an administrative appeal. That caseload placed a burden on DMV, and minors' licenses were being revoked for patterns that were unclear. To clarify the statute, HB 151 establishes a nexus to a vehicle and adds a reissuance procedure for those who can show that they have ameliorated their unacceptable behavior. The nexus argument provides that the minor must possess or consume alcohol in a vehicle for license revocation to occur. The amendment proposed by Chairman Taylor would prevent an administrative revocation from occurring if the minor is found to be not guilty in court. CHAIRMAN TAYLOR announced the Senate Judiciary Committee work draft is dated May 11, 1999 and was drafted by Mr. Ford. Number 076 JUANITA HENSLEY, Division of Motor Vehicles, stated DMV is satisfied with the work draft. DMV has been concerned that the "use it and lose it" law has had the unintended consequence of revoking a repeat offender's license for as long as 43 years. Passage of the work draft will allow DMV to review those case records and stack revocations concurrently so that people can get their licenses back after completing treatment and an evaluation. CHAIRMAN TAYLOR asked Ms. Hensley to describe the differences between the original bill and the newest work draft. MS. HENSLEY said the previous version tied a nexus to the vehicle so that the minor had to be occupying the vehicle and the officer had to see the minor possessing or consuming alcohol. The work draft provides that an officer can issue a citation if he/she has probable cause to believe the minor consumed alcohol. The minor would have the right to an administrative hearing to contest the revocation and to file an appeal in Superior Court. CHAIRMAN TAYLOR asked if the nexus to the vehicle was removed. MS. HENSLEY said that is correct. CHAIRMAN TAYLOR expressed concern that the "use it and lose it" law was initially targeted at minors who did not yet have the right to drive and was to provide an incentive to not consume alcohol. Inadvertently, the law was written so that revocations are stacked consecutively rather than concurrently. The effect has been that some people cannot get their licenses reinstated until they are 30 because they did something stupid at age 16. He recalled that a bill was before the previous legislature that included funds for treatment programs for young people. He asked about its status. MS. HENSLEY replied that Chairman Taylor was referring to SB 58; it would have given DMV the authority and a funding mechanism to refer individuals to a treatment program. The authority provision remained but the funding mechanism was removed from the bill at the end of the previous session. Number 150 SENATOR HALFORD asked how concurrent sentences will provide minors with an incentive to stop using alcohol. MS. HENSLEY remarked DMV shares Senator Halford's concern about how to send the message to minors that it is illegal to consume or possess alcohol. She stated the work draft is the best incentive DMV, Youth Corrections and the Division of Alcohol and Substance Abuse could come up with. SENATOR HALFORD asked whether more revocation time can be added after the third offense and, if so, whether that could provide a minor with an incentive to stop using after the third violation. MS. HENSLEY said additional revocation time cannot be added under this draft. The first revocation will decrease from 90 to 30 days, the second will decrease from one year to 180 days, and the third will decrease from three years to one year. She noted she recently requested a DMV computer run of repeat offenders which produced 21 pages of the names of minors with up to 18 violations of minor consuming in the last three years. Under current law the 18-year old with 18 violations will not get his driver's license back until he is 53 years old. Several offenders have 14 and 15 violations; those offenders are equally distributed in regard to race and gender. DMV has no mechanism to refer offenders to treatment, however it does require proof of completion of an alcohol treatment program when licenses are to be reinstated. Number 215 CHAIRMAN TAYLOR noted Alaska has one of the highest teen alcoholic populations in the United States and that the original intent of the law was to address alcohol consumption among the teenage population, not merely to address drinking and driving. MS. HENSLEY commented the "use it and lose it" law was enacted in July of 1994. In calendar year 1995, 2,891 citations were issued for minor consuming and minor in possession. In 1998, 4,822 citations were issued. At present 9,491 licenses have been revoked. SENATOR HALFORD suggested putting a limit on the legislation so that it no longer applies to drivers upon their 22nd birthday. MS. HENSLEY stated DMV has no problem with that approach. Number 266 CHAIRMAN TAYLOR commented the House version is limited to minors consuming alcohol in a car; the Senate Judiciary version moves away from the nexus of the vehicle. SENATOR HALFORD moved to adopt SCSHB 151(JUD) as the working draft before the committee. He noted the offense was never intended to be tied to a vehicle. CHAIRMAN TAYLOR objected to the motion for the purpose of discussion. SENATOR DONLEY asked who originally sponsored the legislation. CHAIRMAN TAYLOR replied former Representative Toohey. SENATOR DONLEY asked Mr. Winchell whether he supports SCSHB 151(JUD). MR. WINCHELL informed committee members that the nexus argument resulted from the Anita Storm case. That Supreme Court case received a two-two decision on appeal. The decision is not binding, but the arguments were persuasive when considered by the House Judiciary Committee. In the Storm case, Superior Court Judge Gonzalez grappled with the question of whether administrative revocation was punitive or remedial in nature. He concluded it was punitive, and therefore needed stronger due process requirements. The nexus argument which ties the offense to vehicles was created by Representative Rokeberg although he would have preferred that the offense not be tied to the nexus of a vehicle. MR. WINCHELL stated in a second case named Rexford vs. State, the court upheld that for double jeopardy cases, the "use it and lose it" law is remedial in nature, however the House Judiciary Committee believes HB 151 deals with due process issues, not double jeopardy issues. SENATOR DONLEY asked how the sponsor feels about the committee substitute. MR. WINCHELL said Representative Kott would have concerns about the elimination of the nexus argument. SENATOR HALFORD stated the House version provides that an offense occurs only when the minor is consuming alcohol inside a vehicle which essentially makes the bill unenforceable. He added the bill is substantially different from the original intent of the law. MR. WINCHELL repeated the case law is not binding. Number 334 ANNE CARPENETI, Department of Law, informed committee members a second case is being prepared for appeal now. The Court of Appeals has upheld the "use it and lose it" law and found it to be remedial in nature. In essence, a Superior Court judge found the law to be unconstitutional while the Court of Appeals has found it is not. SENATOR HALFORD stated more weight should be put on the Court of Appeals decision rather than on the Superior Court decision which was made by an individual judge. MS. CARPENETI indicated that at about the time the "use it and lose it" law was enacted, the Legislature reduced the penalty for minor consuming from a misdemeanor to a violation, which carries a maximum fine of $300. The only time repeat offenders can be evaluated for alcohol problems is through the "use it and lose it" program which requires evaluation before offenders' licenses are reissued. The Department of Law originally supported the "use it and lose it" law, but now believes it needs to be fine tuned. The version of HB 151 that passed the House corrects some of the problems, such as shortening the periods of revocation. SENATOR DONLEY asked Ms. Carpeneti her opinion of the Senate Judiciary version. MS. CARPENETI said she likes it. She added a good feature of the House bill is the discretion it gives to DMV to reissue a license that was revoked for 20 years under existing law. She cautioned the nexus requirement in the House version negates the "use it and lose it" law because a police officer will have to observe a minor drinking alcohol in a car to issue a minor consuming citation, and observe a minor holding a container to issue a minor in possession citation. CHAIRMAN TAYLOR expressed concern about how to establish possession by consumption. MS. CARPENETI said the police officer might observe and give the minor a field sobriety test. SENATOR HALFORD asked the lowest quantity of alcohol that a breathalyser test will reveal. MS. CARPENETI said she believes it will show .001. SENATOR HALFORD said that in that case any amount of alcohol will result in a violation for a minor. MS. CARPENETI noted the Legislature previously addressed the problem of the margin of error in breathalyser tests. The margin of error cannot be considered except in cases of zero tolerance. CHAIRMAN TAYLOR asked about entanglement problems that could arise from having the action of an acquittal in court automatically rescind administrative revocation. MS. CARPENETI discussed the different standards of proof used; preponderance of evidence and beyond a reasonable doubt. CHAIRMAN TAYLOR said his frustration lies in the fact that a family could take a case to court and the minor could be acquitted, yet the administrative revocation being carried out could hold a stiffer penalty. He repeated that the court case should satisfy both standards and that different standards should not be used. He questioned whether the bill could be drafted to make that work. MS. CARPENETI offered to work on that issue. CHAIRMAN TAYLOR asked Ms. Carpeneti if she is aware of whether insurance companies continue to charge higher insurance rates to parents of a minor whose license was revoked even though the minor cannot drive. MS. CARPENETI replied insurance companies cannot because both Title 21 and Title 28 prohibit such rate increases. SENATOR DONLEY objected to the motion to adopt SCSHB 151(JUD) as the working vehicle of the committee because the sponsor does not support it. MR. WINCHELL told committee members the Rexford case dealt primarily with double jeopardy issues. He repeated Representative Kott would like to include the nexus argument in the bill. MS. CARPENETI stated the Rexford case, regarding the question of whether the revocation is remedial or punitive, revolved around both double jeopardy and the procedural due process arguments. The fact that the case dealt primarily with double jeopardy does not mean that it is not instructive in other issues that can be raised in the "use it and lose it" law. SENATOR HALFORD noted the Department of Law believes the nexus argument makes the law virtually worthless, yet the sponsor wants to retain that argument in the bill. He said he cannot support a bill that makes the statute unworkable. CHAIRMAN TAYLOR took teleconference testimony. FIRST SERGEANT HUDSON, Alaska State Troopers, testified from Anchorage and stated the bill sends a mixed message in regard to possession versus consumption. The Senate Judiciary version gives a specific meaning to "possession" which will eliminate the chance of erroneously charging a designated driver with that offense. MR. KEVIN HYDE, representing GLAD (Good Legislation Assures a Democracy) made the following comments via teleconference from Kenai. GLAD supports legislation that punishes minors for drinking alcohol or using drugs but its members are frustrated by the "use it and lose it" law. One problem with the law is DMV's ability to do an administrative revocation independent of a judge's decision. GLAD questions how the number of drivers with revoked licenses could rise so dramatically over the past few years. The current law is not deterring repeat offenders. GLAD believes requiring these offenses to be heard by a judge would be helpful. CHAIRMAN TAYLOR offered to send Mr. Hyde a copy of the Senate Judiciary version via fax and asked him to respond with GLAD's recommendations. MR. HYDE noted GLAD's main desire is to eliminate any penalty for a designated driver. NUMBER 539 SENATOR DONLEY proposed the following conceptual amendment to the Senate Judiciary Committee version: delete the words, "while occupying a motor vehicle" on line 10 and replace with, "the consumption occurred within the proximity of a vehicle or with a nexus to a vehicle." He explained that change will maintain the linkage with a vehicle but it will not require the minor to be occupying the vehicle. SENATOR HALFORD stated the proposed language to be an improvement and said he assumes the court will define the nexus to a vehicle through case law. MS. CARPENETI expressed concern that using the words "the nexus" in the bill will ratify a losing argument. She noted the Department of Law disagrees with Judge Gonzalez's opinion. She repeated that the purpose of the "use it and lose it" law is to provide immediate consequences for minor consumption or possession, and that other laws are on the books to address drinking and driving. The House version was very clear on the nexus issue: the minor had to be sitting in a car consuming alcohol. The Senate Judiciary version requires the minor to be in proximity of a car which is unclear and will prompt litigation. Number 574 CHAIRMAN TAYLOR agreed the "use it and lose it" law was based on a much broader concept. SENATOR HALFORD said this bill will repeal the original law and the numbers will go down tenfold, which will not provide an incentive. MS. CARPENETI stated she believes the number of convictions will decrease to below 400 per year. She added when the proposed committee substitute was being discussed, the trade-off for having the connection to a car was to reduce the length of revocation from 90 to 30 days for a first offense. TAPE 99-31, SIDE B CHAIRMAN TAYLOR repeated that he believes putting a provision in the bill that negates an administrative revocation if a person is found not guilty in court will alleviate a lot of concerns. SENATOR HALFORD agreed, as long as the minor does not use a public defender. MS. CARPENETI noted one cannot get a public defender or a jury trial for a violation. CHAIRMAN TAYLOR said he believes it would be more effective to require minors to stand before a district court judge on a misdemeanor charge but it would cost more. Number 575 TOM WAGONER, a Juneau attorney with a 16 year old client, stated he favors the version of HB 151 that passed the House. His client does not have a license. He was allegedly caught smoking marijuana nowhere near a car, yet under current law he will be unable to get his drivers license. Under Judge Gonzalez's opinion, there is an insufficient connection between his client's behavior and the effects. The consequences of having a drug and alcohol related driving offense are more serious than the license revocation; his client could be prevented from engaging in certain occupations. He favors the nexus argument but noted the House version does not include marijuana offenses. He believes alcohol and marijuana offenses should be treated similarly in this context. Number 546 TOM FINDLEY, a Juneau attorney, stated he has represented minors who have been arrested for consuming alcohol and had their licenses suspended. He believes the law should punish the act of minor consuming, that sentences should get tougher with each offense, and that the law should provide for education about alcohol abuse. However, he believes the House version is not aimed at drunk drivers; it focuses on those who risk becoming drunk drivers and carries a penalty of license revocation, which is why the nexus argument is in the bill. If the minor is consuming alcohol or marijuana, but is nowhere near a vehicle, that action should have no effect on his/her license because the problem is one of minor consuming, not driving-while-impaired. MR. FINDLEY stated it would be appropriate if the number of cases decreases substantially because the nexus provision is retained in the bill because the punishment will apply to the crime and not to individuals who are nowhere near a vehicle. CHAIRMAN TAYLOR agreed that drivers' license revocation was a convenient punishment for a 16 year old caught consuming but the Legislature may have chosen the "wrong horse to ride" on this issue. Number 446 ROBERT BUTTCANE, a juvenile probation officer with the Department of Health and Social Services (DHSS), stated support for the Senate Judiciary version. DHSS is concerned that the state has not found a good way to deal with cases of minor consuming or minor possession of alcohol. The House version will prevent DHSS from tracking minors with significant alcohol problems and those minors will resurface in the delinquency and criminal systems as their alcohol issues go unchecked. The last Legislature created a mechanism so that DHSS can operate a juvenile alcohol safety action program, but no funds were appropriated for it. Although the Senate Judiciary version may not provide the best answer to the problem of minor consuming, it is the best available at this time. CHAIRMAN TAYLOR asked Mr. Buttcane his opinion of reenacting the old minor consuming law which carried a misdemeanor penalty. MR. BUTTCANE noted that recriminalizing minor consuming would have a fiscal impact but that approach would address the problem more directly. CHAIRMAN TAYLOR asked if Mr. Buttcane thought the Administration would support that approach. MR. BUTTCANE replied the Administration has had these discussions but it does not want to support that approach without a commitment to fund it. CHAIRMAN TAYLOR asked if the percentage of prisoners incarcerated for crimes committed under the influence of alcohol remains the same. MR. BUTTCANE said he believes that number remains at about 80 percent. CHAIRMAN TAYLOR questioned whether anyone has studied and projected the fiscal impact on the prison system, 15 years from now, if the minor consuming laws were enforced now. MR. BUTTCANE said he is not aware of any studies but they would be worthwhile. CHAIRMAN TAYLOR reminded committee members a motion was on the table to adopt SCSHB 151(JUD) as the working vehicle of the committee. He noted his intention to adopt it, and keep it in committee for a few days while amendments are prepared. SENATOR DONLEY said he believes the sponsor's concern about the nexus issue is likely to be resolved in the next few days, therefore he removed his objection to adopt SCSHB 151(JUD). CHAIRMAN TAYLOR announced SCSHB 151(JUD) was adopted and would be heard again at the next hearing. HB 214-PRISON LITIGATION BILL PARKER, Department of Corrections, informed committee members the department has been under court oversight since 1990. It has been attempting to get out from that oversight by complying with each issue laid out in the court's settlement agreement. Enactment of HB 214 will get the Department 97 percent of the way to full compliance. He noted the bill will enable the Department of Corrections to be out from court oversight, however it will not save money. He stated support for the bill. SENATOR DONLEY moved HB 214 from committee. There being no objection, the motion carried. CHAIRMAN TAYLOR announced he has four matters pending on the calendar to take up at another time. He adjourned the meeting at 2:36 p.m.