Legislature(2003 - 2004)
04/06/2004 03:10 PM House HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 381-CHILD ENDANGERMENT DRIVING OFFENSES Number 1150 CHAIR WILSON announced that the next order of business would be HOUSE BILL NO. 381, "An Act relating to child endangerment." Number 1126 HEATH HILYARD, Staff to Representative Lesil McGuire, Alaska State Legislature, presented HB 381 on behalf of Representative McGuire, sponsor. He read a portion of a 2004 report from Mothers Against Drunk Driving (MADD) titled Every Child Deserves a Designated Driver, as follows: Carly McDonald, five years old, was killed on January 1, 1998, by her intoxicated mother who was driving with a blood alcohol content of .22 percent, over twice the legal limit. Carly had been placed in the front seat of the car, her unused booster seat was found in the back. Carly's mother had been specifically court ordered not to consume alcohol in Carly's presence. This was not enough to save Carly's life. MR. HILYARD went on to say that research statistics that MADD has presented both with regard to child endangerment as it pertains to driving under the influence and failure to restrain showed that of the children who died while riding in the same vehicle with a drinking driver only 29 percent were known to have been restrained. Although restraint used in this group of children is unacceptably low, restraint use has increased in recent years. The May 2000 Journal of the American Medical Association study found that only 18 percent of children who were riding with a drinking driver at the time of the crash were known to be restrained. Mr. Hilyard said that the increase in restraint use among child passenger deaths is consistent with the increase of child restraint use over time in the general population. Strong enforcement of child safety seat laws and passage of primary enforcement seatbelt laws in all states could further reduce child passenger deaths. Number 0983 MR. HILYARD told the members that studies from the State of Alaska's Advisory Board on Alcoholism and Drug Abuse and the National Transportation Safety Board addresses two key components of HB 381. He referred to two specific provisions which will be added to Alaska's child endangerment laws on page 2, lines 8 through 12, as follows: (4) transports a child in a motor vehicle, aircraft, or watercraft while under the influence of an intoxicant; or (5) transports a child in a motor vehicle without requiring the child to use the seating restraints required by law, and the child suffers physical injury or dies. MR. HILYARD commented that it is not the sponsor's intention to cause a felonious charge for simply failing to restrain [a child], but when that failure to restrain leads to an injury or death of a child it is believed that warrants an additional charge. MR. HILYARD pointed out that the Advisory Board on Alcoholism and Drug Abuse states that Alaska leads the nation on alcohol abuse; the rate of dependence is twice the national average; most crime in Alaska is alcohol related; and more than 80 percent of the problems that are faced with regard to children have a direct correlation to alcohol [abuse]. He said alcohol abuse results in roughly $453 million in costs to the state and consumers annually. No small portion of that has to do with motor vehicle laws. Number 0876 MR. HILYARD referred to a study done this year by the National Transportation Safety Board (NTSB) called Putting Children First. This report looked at a past eight-year period in terms of the importance of having proper restraints for children. The intent is two-fold, one is to strongly discourage people from driving with their child while under the influence of alcohol or some other intoxicant. The second is to strongly encourage the proper safety restraints for their children. Mr. Hilyard commented that the MADD report suggests that there is a strong correlation between the two points, in that many adults who drive under the influence of alcohol also fail to properly restrain their children. MR. HILYARD said that the NTSB did a study in 1996 of 180 restrained children and found that 52 of the children used vehicle seatbelts when the child should have been placed in child restraint systems with booster seats. Seatbelts are improper for many children under the age of eight years old. He commented that there will be some variables suggested based on the height and weight of the child. It is essential that children be restrained properly. If a child is improperly restrained and it results in serious injury or death, it is the sponsor's belief that should result in additional criminal charges. MR. HILYARD told the members that there should be a representative from Mothers Against Drunk Driving on-line to testify in support of HB 381. LINDA WILSON, Deputy Director, Public Defender Agency, Department of Administration, testified on HB 381 and answered questions from the members. She told the members that the agency supports protecting children, but pointed out that some of the language in the bill could have unintended consequences. She referred to page 2, lines 8 and 9, subsection (4), as follows: (4) transports a child in a motor vehicle, aircraft, or watercraft while under the influence of an intoxicant; MS. WILSON commented that this language makes it a felony to transport a child if the driver is under the influence of an intoxicant. She pointed out that it is not clear what an intoxicant can be. Ms. Wilson said that the sponsor statement and the examples provided in testimony referred to an individual who is above the legal limit of alcohol. There is a concern that a person could be charged with a felony for transporting a child whether or not above the legal limit, but be under the influence of some sort of an intoxicant. One other point that is of concern is that a person is facing a felony charge when there has been no resulting injury to the child. Number 0649 MS. WILSON referred to [subsection(5), page 2, lines 10 through 12] as follows: (5) transports a child in a motor vehicle without requiring the child to use the seating restraints required by law, and the child suffers physical injury or dies. MS. WILSON pointed out that this subsection refers to the child suffering physical injury [or death] and the level of the penalty depends on the injury to the child. She said she is not sure whether there should be some changes to the language in subsection (4) to address that as well. MS. WILSON explained that current law provides that if a person drives while intoxicated and a person in the car is injured, the individual could be charged with reckless endangerment which is a class A misdemeanor in AS 11.41.250. There is no definition of the word "child" in this bill. Ms. Wilson questioned whether there should be a definition or a narrowing of the definition. She commented that in many other parts of Alaska statute a child is a person who is under the age of 18 years old. A companion bill talks in detail about endangering a minor under the age of 10. In subsection (5) where it talks about restraints it might be appropriate to look at clarifying language under a certain age, she added. MS. WILSON summarized that the motives for HB 381 are good, but she is concerned about some of the breadth of the language which may pull more people in than is intended. Number 0566 CHAIR WILSON pointed out that the age limitation is addressed on page 1, line 6, where it refers to a child under the age of 16 years of age. MS. WILSON thanked Chair Wilson for bringing that language to her attention. She suggested that the committee may still want to look at additional clarifying language for a smaller child. CHAIR WILSON asked Ms. Wilson what that suggested language would be. MS. WILSON replied that in statute that refers to endangering the welfare of a child, the age of 10 years old is used. In the seatbelt statute which is found in AS 28.05.095 there are two different age levels; one group is under four years of age and another group is from age four to sixteen years of age, she added. Number 0481 REPRESENTATIVE GATTO asked Ms. Wilson if the word "intoxicant" includes substances other than alcohol. MS. WILSON replied that intoxicant as defined in AS 47.10.990 includes alcohol, but other controlled substances such as drugs or hazardous volatile materials or inhalants would also be included. REPRESENTATIVE GATTO asked if concentrated over the counter drugs used for the purpose of getting high would be included under this definition. MS. WILSON said yes. Intoxicants are substances that temporarily diminish a person's control over mental or physical powers including alcohol. She asked if Representative Gatto is referring to cold medicine. REPRESENTATIVE GATTO commented that some youngsters have tried Sudafed in an effort to bring out just the active ingredients, concentrated it, and used it to get high. MS. WILSON responded that Sudafed probably would be included under the definition of intoxicants in that instance. Number 0303 REPRESENTATIVE SEATON commented that about half the over the counter drugs are labeled with a warning not to operate a vehicle or not use while operating heavy equipment. He asked if an individual were to take Sudafed or some other over the counter drug as a cold medication and were in an accident, could the individual be charged under this legislation if it were to become law. MS. WILSON replied yes. She said she told the members that is a worrisome point. CHAIR WILSON told the members that the next committee of referral is the House Judiciary Standing Committee. She asked the members to look at the bill in terms of a policy issue and allow the House Judiciary Standing Committee to address the legal aspects of the bill. MR. HILYARD asked the members to look at the handout in their packets from the National Conference of State Legislatures, Drunk Driving Child Endangerment Laws, as of December 2003. He pointed out that this comparative chart shows the number of first time offenses in other states when driving while intoxicated with a child in the vehicle. A class C felony seems somewhat high compared to other states, he said. Mr. Hilyard assured the committee that Representative McGuire, as chair of the House Judiciary Standing Committee, would be comfortable in dropping that particular charge down to a class A misdemeanor. He emphasized that the overall concern is protecting children. Mr. Hilyard reiterated that if the committee wishes to make that amendment he does not believe the sponsor would object. Number 0203 CHAIR WILSON shared that many times she has observed individuals out boating and felt concerned for the kids because it was clear the adults were having a pretty good time. For many people in Alaska boats are the only mode of transportation. She said she believes the legislature needs to raise the bar so people will realize that some actions by adults are not acceptable. MR. HILYARD commented that just before coming to the meeting he printed out a list of bills currently in the legislature that deal with enhancing DUI laws. There were quite a number, he remarked. TAPE 04-29, SIDE A Number 0026 MR. HILYARD added that he has great respect for the public defender's position and assured the committee that the House Judiciary Standing Committee will amend the bill to change the penalty to a class A misdemeanor. Number 0047 REPRESENTATIVE SEATON told the members that for the last year and a half he has been working with Alaska Safe Kids with respect to the problems of enforcement of Alaska's seatbelt laws. He explained that the police are having difficulty enforcing the law because it is hard to interpret it. Two months ago all the police departments in the state received a copy of the attorney general's opinion which was to setout exactly what the law says. Representative Seaton told the members that Alaska Safe Kids is still receiving requests for clarification from police departments. Part of the confusion is that Alaska's law refers to the National Highway Traffic Safety Administration (NHTSA) site where it refers to weight and height parameters. The police still do not know how to site individuals because they are unclear on the requirements for restraints. REPRESENTATIVE SEATON pointed out that this bill would impose felony convictions on individuals who do not have children properly restrained when the police cannot figure out on a coordinated basis how to enforce the law. He emphasized that he is very concerned with this bill because it goes far beyond health and safety issues. He pointed out that parents will have to decipher what is required of them [when the police still cannot]. Number 0185 REPRESENTATIVE SEATON explained that determining the proper restraint is difficult because it depends not only on the design of the individual car seat, but also how it is installed in the car, and the weight and height of the child. For example, if a child is three pounds over the weight requirement for a booster seat, that is illegal, he said. REPRESENTATIVE SEATON commented that another concern he has is that individuals are being penalized for what happens if there is an accident, and not for failure to use seat restraints. If a child is seriously hurt in an accident or dies, the parent's action was exactly the same and yet the penalty is based on what happened in the car at the time of the accident, he said. Representative Seaton summarized that he is uncomfortable with this part of the bill, and suggested that the House Judiciary Standing Committee could deal with that point. CHAIR WILSON agreed with Representative Seaton on the seat restraint issue. It would be easy to see how a child could exceed weight or height capacity and the parent might not notice until the child does not fit. REPRESENTATIVE SEATON went on to say that the seat may have been fine six months ago, but now is not the proper restraint. Alaska law does not specify exactly what is to be used, just that proper restraint must be used. Proper restraint requirements are changing and so are the NHTSA regulations. That is the reason the Alaska statutes are not more specific. Number 0392 REPRESENTATIVE CISSNA asked for clarification on felony convictions and the penalties associated with it. MR. HILYARD asked for her to restate her question. REPRESENTATIVE CISSNA said that as she understands it if an individual is convicted of a felony, he/she will not qualify for certain jobs ever again. MR. HILYARD said that is correct. REPRESENTATIVE CISSNA said if convicted these individuals will not be able to vote again. MR. HILYARD said that is correct. REPRESENTATIVE CISSNA commented that in many of the neighborhoods in her district there are very poor people with a higher percentage of individuals who have felony convictions. Many of them do not have jobs that provide health insurance. The person who was driving that car and made that mistake will be a very different kind of parent than before the conviction, Representative Cissna stated. She asked if that is the message the legislature wants to give. Number 0571 MR. HILYARD responded that Representative Cissna made a good point and that is the reason he told the committee the sponsor would not object to amending the bill under subsection (4) which refers to transporting a child while under the influence of an intoxicant to a reduction in penalty to a class A misdemeanor. There is a big difference between the penalties associated with a class C felony and a class A misdemeanor, he commented. MR. HILYARD said that he believes that the sponsor would want the language in subsection (5) which relates to failure to restrain as it relates directly to physical injury or death. He pointed out that there is a graduated level of penalty, class B felony if the child dies, and class C felony if serious injury. He offered that Representative McGuire may consider in House Judiciary Standing Committee lessening the penalties to a class A misdemeanor and class B felony. Mr. Hilyard emphasized that he could not commit to that change without consulting with the sponsor. REPRESENTATIVE CISSNA asked if sentencing requirements would allow for alcohol rehabilitation as a substitute [for prison time]. She pointed out that an individual who have lost a child, may have other kids at home. This option might be better for the rest of the family if the parent can stay sober. Number 0918 MR. HILYARD asked for clarification that Representative Cissna is asking if judges have sentencing guidelines which allow them the option of offering alcohol treatment instead of jail time. REPRESENTATIVE CISSNA replied that she wonders if the felony charge could be reduced [to a misdemeanor] if the individual goes through a mandated substance abuse treatment program and that it is shown to be working. MR. HILYARD responded that what he believes Representative Cissna is asking is if after-the-fact a felony charge could be reduced if the individual meets specific requirements. He told the members that it is his understanding that is not the way the judicial system works. He commented that the district attorney could opt to plea a case and reduce the charge from a felony to a misdemeanor. He suggested that the public defender could better speak to this question. REPRESENTATIVE SEATON posed a hypothetical question where a parent has a couple of drinks, and then takes his/her family on a ferry from one point to another. In that instance would this individual be guilty of committing a felony since he/she has transported a child in a watercraft. He noted that the language does not specifically say the individual would have to be operating the watercraft. MR. HILYARD emphasized that the point where the parent would actually be guilty of committing a felony is while operating a motor vehicle the parent transports the child from home to the ferry. He offered that in Representative Seaton's hypothetical question if the parent were to have a couple of drinks, then walk his/her child to the ferry and accompany the children on the ferry, he would say the individual was probably not guilty of committing a felony. He believes the individual must be in control of the motor vehicle, aircraft, or watercraft. He emphasized that is his opinion and does not speak to that with absolute certainty. Mr. Hilyard said he would have to look at Alaska statutes. He suggested that maybe an amendment specifying that the individual must be "operating" the motor vehicle, aircraft, or watercraft. Mr. Hilyard commented that the law needs to be reasonable and often there are unintended consequences to well-intentioned laws. He offered to bring an amendment forward in House Judiciary Standing Committee. Number 0980 REPRESENTATIVE GATTO suggested that the words "transports in a motor vehicle" or "allows the child to be transported in a motor vehicle operated by a person known to be intoxicated" be inserted, so that the bases are covered. He also pointed out that in subsection (4) there is reference to motor vehicle, aircraft, or watercraft, while in subsection (5) there is only reference to motor vehicles. He commented that he understands that it is the sponsor's goal to provide for child safety, so he asked that as the bill moves on the language be changed to address some of the points raised by Representative Seaton and himself. MR. HILYARD clarified that Representative Gatto would like the scope of responsibility to expand from not only operating a motor vehicle, aircraft, or watercraft, but allowing transport of a child by someone known to be intoxicated. REPRESENTATIVE GATTO responded that is correct. MR. HILYARD asked Representative Gatto if he has a preference on the sentencing requirements. REPRESENTATIVE GATTO replied he would leave that to the [House Judiciary Standing Committee]. Number 1074 REPRESENTATIVE WOLF moved to adopt Conceptual Amendment 1, as follows: Page 2, line 8, after "(4) " Delete: "transports a child in a motor vehicle, aircraft, or watercraft" Insert: "operates the motor vehicle, aircraft, or watercraft that transports a child" Page 2, line 10, after (5) Delete: "transports a child in a motor vehicle" Insert: " operates the motor vehicle, aircraft, or watercraft that transports a child" Number 1140 REPRESENTATIVE GATTO objected. He said he would like to see the scope expanded to include "allows to be transported". He offered a conceptual amendment to Conceptual Amendment 1, which would include language that covers "allowing a child to be transported knowing the operator is under the influence of an intoxicant." Number 1178 REPRESENTATIVE SEATON objected to the conceptual amendment to Conceptual Amendment 1. He said he objects to the terms "under the influence of intoxicant." He told the members he believes the term "intoxicant" is so broad and there is no definition which clarifies the meaning in this case. Representative Seaton said he is very concerned about the breadth of that term. CHAIR WILSON asked Representative Seaton if he is objecting to the amendment to [Conceptual Amendment 1]. REPRESENTATIVE SEATON pointed out that the wording does not provide for a standard such as DUI. It does not say that the person is intoxicated, just that the individual had something. It could be cough medicine, he added. CHAIR WILSON reminded Representative Seaton of earlier testimony that intoxicant is already defined in Alaska statutes. REPRESENTATIVE SEATON replied that the definition was very broad. Number 1269 MR. HILYARD read the statute as follows: Intoxicant means a substance that temporarily diminishes a person's control of mental or physical powers, including alcohol, controlled substances under AS 11.71 and hazardous volatile material or a substance used by inhaling its vapors. MR. HILYARD suggested a potential amendment on Section 4, Page 2, line 23 and 24, where language could be inserted to say "In this section under the influence means as properly reference previously in statute." Number 1301 CHAIR WILSON stated that she does not believe Representative Seaton is really objecting to the amendment to Conceptual Amendment 1. She assured Representative Seaton that the committee will address his concerns. Number 1311 REPRESENTATIVE GATTO restated his suggested amendment that language be inserted that would address a parent allowing a child to be transported. REPRESENTATIVE SEATON commented that the word "knowingly" was included in the amendment to the amendment. CHAIR WILSON asked if there are any objections to the amendment to Conceptual Amendment 1. Number 1375 REPRESENTATIVE COGHILL object. He told the members that he needs to see more definitive language before he could support the amendment to the amendment. A roll call vote was taken. Representatives Gatto and Wilson voted in favor of the amendment to Conceptual Amendment 1. Representatives Wolf, Coghill, and Seaton voted against it. Therefore, the amendment to Conceptual Amendment 1 failed by a vote of 2-3. CHAIR WILSON asked if there are any further objections to Conceptual Amendment 1. There being no objection, Conceptual Amendment 1 was adopted. Number 1477 REPRESENTATIVE SEATON moved Amendment 2, as follows: Page 2, delete lines 10 through 12 Number 1483 REPRESENTATIVE COGHILL objected for purposes of discussion. REPRESENTATIVE SEATON commented that Representative Coghill may have missed an earlier discussion. He explained that for the last year and a half he has worked with the Alaska Safe Kids in an effort to define what the requirements are for individuals to secure their kids. The police could not agree on how to cite individuals, he explained. So about a month and a half ago the attorney general sent out an opinion to all police departments, but comments that have come back say that there still is not enough clarity in the definition to do citations. Representative Seaton told the members that it is disturbing to consider charging parents with a felony for not having children in the proper restraints when the police cannot even figure out how to interpret the law. That is his reason for offering the amendment. Number 1542 REPRESENTATIVE LESIL McGUIRE, Alaska State Legislature, sponsor of HB 381, answered questions from the committee. She asked the members to consider a change on page 2, line 15, to lower the charge from a class C felony to a class A misdemeanor. It makes sense to give people a chance to get use to the law without making people felons, she added. REPRESENTATIVE McGUIRE asked Representative Seaton to allow the bill to come to the House Judiciary Standing Committee and take testimony from the Alaska State Troopers, the Department of Motor Vehicles, and review the attorney general's opinion. She said she would try to narrow it down and determine what the specific requirements are. She told Representative Seaton that if the changes made do not meet with his satisfaction they could talk about [further changes]. REPRESENTATIVE SEATON asked if this [violation] isn't already a class A misdemeanor. It is already a primary offense to be transporting a child who is not properly restrained. He pointed out that the police cannot stop an individual for not wearing a seatbelt; however, if there is a child below the age of 16 in the car who is not properly restrained then the car can be stopped and the operator cited. Representative Seaton commented that he also has problems with Section 3 which refers to class B and class C felonies with the difficult standard in knowing what to enforce. Number 1660 REPRESENTATIVE McGUIRE commented that under the current law this bill will say that this is a primary offense. She explained that Section 4 and 5 draws attention to those who would transport a child while under the influence. She explained that Mr. Hilyard had expressed that there was concern from the committee about a felony. Representative McGuire assured the committee that when the bill comes to the House Judiciary Standing Committee the bill will be reviewed as is done whenever there is an offense involved. She pointed out that if Representative Seaton's amendment carries, it will gut the bill. The point of the bill says that when a parent takes a child in a car it is essential the child be properly restrained. This bill is intended to save lives. Children are not in a position of making that choice for themselves. They rely on adults to make those decisions for them, Representative McGuire added. Removing reference to the seating restraints removes the point of the bill, she stated. REPRESENTATIVE SEATON said that he agrees with Representative McGuire, but pointed out that it is already a primary offense. He said he is concerned in the move to make the punishment a felony. Number 1768 CHAIR WILSON asked what are the steps in severity in punishment. REPRESENTATIVE McGUIRE replied that she does not have that information with her today. She added that she came prepared to speak to the health and safety issues associated with the bill, and offered that the more appropriate committee to address the legal issues is the House Judiciary Standing Committee. REPRESENTATIVE McGUIRE explained that there is a class A, B, and C felony. The class C felony is the lowest felony, and the highest felony is an unclassified felony. CHAIR WILSON responded that earlier in the meeting it was decided the House Health, Education and Social Services Standing Committee would look at the social and policy aspect of the bill. She suggested Representative Seaton withdraw his amendment and allow the House Judiciary Standing Committee to deal with this aspect of the bill. The largest problems in Alaska are alcoholism and problems associated with alcoholism, she stated. Number 1849 REPRESENTATIVE SEATON pointed out that Section 5 does not deal with alcoholism. It deals with proper use of car restraints and raises the punishment for a crime that is already against the law. He emphasized that his concern lies with parents and police understanding what is the proper restraint for kids. CHAIR WILSON replied that Representative Seaton makes a good point. REPRESENTATIVE McGUIRE agreed that is a good point. She said she would hope no one would disagree with Section 4. Representative Seaton has made good points concerning the importance of defining [proper restraints], she said. Representative McGuire added that if the committee would be more comfortable in taking that out, then when it comes to House Judiciary Standing Committee she will work to fine tune this point. She said she would be comfortable with that. One thought that came to her is the idea of including some mental intent because the parents that the bill is trying to address are those that are making no effort at all. The bill really is not intended to be directed at a parent who is making a good faith effort and does not have exactly the right restraint. Number 1958 REPRESENTATIVE WOLF said he appreciates Representative McGuire's thoughts, but believes that in the real world when a police officer pulls a car over, it will not be the mental intent he/she will be looking at. For example, he has a nine year old and a ten year old and cannot decide which restraints his kids should be in because neither one of them fits in it. He commented that his wife knows how much the kids weigh and ensures the kids are in the right seats. He told the members that his son is one pound under the legal limit. It takes a lot of stretching and pulling to get him into the restraint. Representative Wolf added that under this bill he could be guilty of a class C felony. Number 2002 REPRESENTATIVE McGUIRE explained that it is simply not the police officer's word that results in a charge of a class C felony. A prosecutor must charge an individual. In order to be charged the individual must meet all the elements of the crime. Even if an individual is charged with a class C felony, there is still the option of a jury trial. This bill is not intended to go after people who are making good faith efforts to put their children in proper restraints, she reiterated. The people that this is intended for are those that make no effort whatsoever, she said. REPRESENTATIVE WOLF commented that he understands what Representative McGuire is trying to do, but the result still remains that an individual would have to hire an attorney, take time off of work to appear in court, and it ties up the court system. Number 2077 REPRESENTATIVE COGHILL removed his objection. There being no further objection, Amendment 2 was adopted. Number 2086 REPRESENTATIVE COGHILL moved to report HB 381, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 381(HES) was reported out of the House Health, Education and Social Services Standing Committee.