Legislature(2003 - 2004)

02/02/2004 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 342 - INCREASE DRIVING UNDER INFLUENCE PENALTY                                                                             
                                                                                                                                
Number 1531                                                                                                                     
                                                                                                                                
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE  BILL   NO.  342,  "An   Act  relating  to   driving  while                                                               
intoxicated; and providing for an effective date."                                                                              
                                                                                                                                
Number 1517                                                                                                                     
                                                                                                                                
REPRESENTATIVE CARL  GATTO, Alaska State Legislature,  sponsor of                                                               
HB 342,  explained that  [through this  legislation] he  hopes to                                                               
"delineate"  the person  who drinks  and drives.   Representative                                                               
Gatto  related that  about 50  percent of  the crashes  involving                                                               
fatalities  also involve  [an individual  with]  a blood  alcohol                                                               
concentration  (BAC)  of  0.15  and  greater.    Furthermore,  he                                                               
related that most accidents are  single-vehicle crashes and if an                                                               
individual has  a BAC of 0.15  or higher, that individual  is 385                                                               
times more likely  to be involved in a single  vehicle crash.  He                                                               
pointed  out that  often, these  single vehicles  have additional                                                               
passengers.   Representative Gatto  highlighted that there  is no                                                               
fiscal note for  HB 342.  However, if there  are serious injuries                                                               
as a  result of these  accidents, one must realize  that millions                                                               
of dollars  of medical and  life costs are incurred.   Therefore,                                                               
the  increase in  fines proposed  by HB  342 may  save the  state                                                               
money.                                                                                                                          
                                                                                                                                
REPRESENTATIVE  HOLM asked  if there  is  some methodology  other                                                               
than using a  "breathalyzer" to determine one's BAC.   He related                                                               
his  understanding  that a  "blood  draw"  would provide  a  more                                                               
reliable BAC than a "breathalyzer."                                                                                             
                                                                                                                                
[Note to the  reader:  Since July 2003,  law enforcement agencies                                                               
in   Alaska  have   been  using   the  DataMaster   cdm  (compact                                                               
datamaster); this and similar units  are often referred to by the                                                               
generic name of "breathalyzer."]                                                                                                
                                                                                                                                
REPRESENTATIVE  GATTO posited  that when  there are  accidents, a                                                               
blood draw is  usually done, which would result in  an exact BAC.                                                               
However, he stressed that [DataMaster]  tests are fairly accurate                                                               
when compared to blood draws.                                                                                                   
                                                                                                                                
REPRESENTATIVE HOLM  related that he  was fairly familiar  with a                                                               
recent case  in Fairbanks in  which the breathalyzer  test result                                                               
was quite  a bit  off.   Therefore, he expressed  the need  to be                                                               
sure to gauge [the BAC] in the most reliable way possible.                                                                      
                                                                                                                                
REPRESENTATIVE GATTO said doing so made sense to him.                                                                           
                                                                                                                                
Number 1268                                                                                                                     
                                                                                                                                
CODY  RICE,  Staff to  Representative  Carl  Gatto, Alaska  State                                                               
Legislature,  sponsor, informed  the committee  that as  a former                                                               
employee of  Community Services Patrol  in Anchorage, he  has had                                                               
the opportunity to administer a  [DataMaster] test and compare it                                                               
with a blood  draw from the same individual.   Although sometimes                                                               
there   was  a   slight  discrepancy,   when  [DataMasters]   are                                                               
calibrated  regularly  their  readings  are very  accurate.    In                                                               
response to Chair  McGuire, Mr. Rice related  his experience that                                                               
the  [DataMaster]  test  result  is lower  than  the  blood  draw                                                               
result.                                                                                                                         
                                                                                                                                
CHAIR  McGUIRE  said  that  is   important  because  this  is  an                                                               
increased penalty for those who have  a BAC level that is higher.                                                               
Therefore, if there is an error  in the test that would lower the                                                               
individual's BAC level and the  subsequent penalty, then she said                                                               
she wasn't as concerned about any possible discrepancy.                                                                         
                                                                                                                                
REPRESENTATIVE  GARA asked  if  the reference  to  the testing  a                                                               
person's breath is  referring to use of a [DataMaster]  or use of                                                               
a  portable breath  tester  (PBT), [the  results  of] which  even                                                               
cause  law enforcement  concern.   He further  asked if  the fine                                                               
increase would be based on the PBT too.                                                                                         
                                                                                                                                
MR.  RICE replied  yes,  adding that  although  he believes  "law                                                               
enforcement  would tend  to  disagree," he  can't  speak for  law                                                               
enforcement because "that  is the case and it is  still legal for                                                               
them to use [PBTs]."                                                                                                            
                                                                                                                                
REPRESENTATIVE GARA  noted that  the courts rely  on [DataMaster]                                                               
results, which  he agreed can  be very accurate  when calibrated.                                                               
Representative  Gara said  he didn't  worry about  requiring that                                                               
the [BAC level] be determined by  a blood draw because that would                                                               
cost  the  state;  moreover,  defendants do  have  the  right  to                                                               
request   a  blood   draw  when   given   a  [DataMaster]   test.                                                               
Representative  Gara said  he didn't  see  why the  PBT would  be                                                               
allowed  since  law   enforcement  doesn't  rely  on   it  for  a                                                               
conviction.  In  reading the language of  the legislation itself,                                                               
he said he  has difficulty determining exactly  what the increase                                                               
in fines would be.                                                                                                              
                                                                                                                                
Number 1037                                                                                                                     
                                                                                                                                
MR. RICE specified  that the sole purpose of HB  342 is to double                                                               
fines  associated  with  [driving   under  the  influence  (DUI)]                                                               
convictions.   On  page 4,  paragraph (1)  specifies that  if the                                                               
trier of fact determines that the  BAC was 0.16 to 0.24, then the                                                               
fines will  be doubled.  Paragraph  (2) on page 4  specifies that                                                               
if the  BAC was 0.24  or greater,  the fines will  be quadrupled.                                                               
In  response  to  Representative  Samuels,  Mr.  Rice  noted  his                                                               
agreement that  this legislation merely  means that if  one's BAC                                                               
is higher, that individual pays more.                                                                                           
                                                                                                                                
REPRESENTATIVE  GARA,  in  response  to  Representative  Samuels,                                                               
explained that  law enforcement carries  around a PBT and  if law                                                               
enforcement   suspects   the   individual  is   drunk,   then   a                                                               
[DataMaster]  test  is also  administered.    He noted  that  the                                                               
[DataMaster] results are relied upon for a conviction.                                                                          
                                                                                                                                
CHAIR  McGUIRE suggested  that the  above  distinction should  be                                                               
clarified.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  GATTO noted  that  many people  attempt to  delay                                                               
testing in the hope that their BAC levels will drop.                                                                            
                                                                                                                                
CHAIR McGUIRE requested that a  law enforcement representative be                                                               
available  at the  bill's next  hearing to  explain how  it would                                                               
work in real life.                                                                                                              
                                                                                                                                
MR. RICE  pointed out that HB  342 doesn't make any  changes with                                                               
regard to  the legality  of using  PBTs, [DataMasters],  or blood                                                               
draws.  The legislation only changes the fines.                                                                                 
                                                                                                                                
Number 0858                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGG  indicated  the  need  to  clarify  the  term                                                               
"chemical  test" on  page 4,  line 2.   Also  on page  4, line  4                                                               
refers  to  "0.16", whereas  other  language  in the  legislation                                                               
refers  to "greater  than  0.15",  which suggests  inconsistency.                                                               
With   regard   to   the   fines   and   sentencing   provisions,                                                               
Representative  Ogg opined  that  there needs  to  be some  fine-                                                               
tuning  between  Section 1,  subsection  (b)(1),  and Section  2,                                                               
subsection (n)(1),  which currently appear to  conflict with each                                                               
other.                                                                                                                          
                                                                                                                                
CHAIR McGUIRE  said that  one could  envision a  case in  which a                                                               
judge attempts  to thwart the  intent behind the  legislation and                                                               
deliberately sets the fine lower and then doubles that.                                                                         
                                                                                                                                
REPRESENTATIVE  GATTO offered  his hope  that some  discretion is                                                               
given  to  the judges.    He  offered  his  belief that  all  the                                                               
legislation does is double [the fines].                                                                                         
                                                                                                                                
REPRESENTATIVE  OGG reiterated  that there  should still  be more                                                               
clarity regarding Sections 1 and 2.                                                                                             
                                                                                                                                
CHAIR McGUIRE  suggested that an  opinion from the  drafter would                                                               
be  appropriate on  this matter.   She  noted her  agreement with                                                               
Representative  Gatto that  some  judicial  discretion should  be                                                               
preserved.                                                                                                                      
                                                                                                                                
REPRESENTATIVE GARA  said that  he certainly  supports increasing                                                               
the fine  for those with  higher BAC  levels, but he  wasn't sure                                                               
that there is  a mandatory minimum for a  misdemeanor DUI charge.                                                               
He  remarked  that  quadrupling  a   $10,000  fine  seems  to  be                                                               
excessive.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  GATTO  pointed out  that  it  takes an  excessive                                                               
amount  of exposure  to previous  fines  in order  to reach  that                                                               
[$40,000]  fine  [and  thus  these   would  be]  repeat,  chronic                                                               
offenders.                                                                                                                      
                                                                                                                                
REPRESENTATIVE GARA  said he  agreed with  the concept  of making                                                               
the fines stiffer  in order to reflect the  society's interest in                                                               
this  matter.   However, he  requested that  Representative Gatto                                                               
consider whether  the DUI fine  should be increased  from $10,000                                                               
to $40,000.   He mentioned that  it's a small minority  of people                                                               
who  are repeat  offenders.   He posed  a situation  in which  [a                                                               
repeat offender] doesn't understand that  he or she needs alcohol                                                               
treatment  until  the  second,  third,  or  fourth  DUI,  and  by                                                               
increasing the fine  to $40,000, the individual will  never go to                                                               
alcohol  treatment.   Therefore,  he  said  he wasn't  sure  that                                                               
society  was being  made better  by increasing  a fine  that will                                                               
probably never  be paid and, if  it was paid, it  might come from                                                               
funds that would've been used to attend a treatment facility.                                                                   
                                                                                                                                
REPRESENTATIVE  GATTO   suggested  that  some  people   could  be                                                               
deterred  when  they  realize there  is  a  considerable  penalty                                                               
attached to a repeat DUI  conviction, though he acknowledged that                                                               
there are  simply people  who don't care,  and hence  raising the                                                               
fines simply won't reach those people.                                                                                          
                                                                                                                                
Number 0274                                                                                                                     
                                                                                                                                
REPRESENTATIVE  ANDERSON  acknowledged  the  difficulty  in  this                                                               
matter  and noted  his support  in  limiting DUI  incidents.   He                                                               
highlighted  the  importance  of  looking to  other  states  with                                                               
regard to  how many states have  a tiered fine system  similar to                                                               
that proposed in  HB 342.  Representative  Anderson indicated his                                                               
agreement with Representative  Gara in regard to  the notion that                                                               
there needs to  be a balance between the penalties  and the group                                                               
of individuals  who will  face the penalties.   He  mentioned the                                                               
need  to   encourage  proactive  measures  as   well.    Although                                                               
Representative  Anderson  said  he  understands  MADD's  punitive                                                               
position,  he   feels  that  sometimes   MADD  doesn't   look  at                                                               
alternative measures, which are also helpful to review.                                                                         
                                                                                                                                
REPRESENTATIVE GATTO  informed the committee that  31 states plus                                                               
Washington,  D.C.,  and  American Samoa  have  legislation  [that                                                               
increases the fines for DUIs].                                                                                                  
                                                                                                                                
TAPE 04-10, SIDE A                                                                                                            
Number 0126                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HOLM  recalled a  newspaper  article  in which  a                                                               
gentleman  was picked  up  at  a bar  for  sleeping  in his  car.                                                               
Representative  Holm  noted  his  agreement  with  Representative                                                               
Anderson in  that one  must look  at things  with respect  to the                                                               
damage  to the  person  committing  [the crime]  as  well as  the                                                               
threat to  society.   He said  that he  has never  understood how                                                               
someone warming  up his or  her car could be  considered driving,                                                               
especially in  Alaska's cold climate.   Representative Holm noted                                                               
his  appreciation  of  Representative  Gatto's  idea  that  there                                                               
should be consequences  for one's actions, adding  that too often                                                               
the  legislature  legislates  such  that  people  don't  pay  the                                                               
consequences for their actions.                                                                                                 
                                                                                                                                
Number 0285                                                                                                                     
                                                                                                                                
CINDY  CASHEN,   Executive  Director,  Juneau   Chapter,  Mothers                                                               
Against Drunk  Driving (MADD), began  by informing  the committee                                                               
that today she is representing  the MADD chapters from Anchorage,                                                               
Fairbanks, Matanuska-Susitna ("Mat-Su") valley,  and Juneau.  She                                                               
noted that  she is also  a victim of  drunk driving.   Ms. Cashen                                                               
announced that  MADD supports  HB 342.   She mentioned  that MADD                                                               
views  [the legislature]  as being  more punitive.   She  pointed                                                               
out, however,  that the proponents  of treatment claim  that MADD                                                               
is punitive,  while the proponents  of jail time claim  that MADD                                                               
is treatment friendly.  This legislation  is just one part of the                                                               
puzzle, she remarked.                                                                                                           
                                                                                                                                
MS. CASHEN  said that  any legislation with  a fiscal  note isn't                                                               
going  to pass  this session,  and therefore  MADD can't  request                                                               
that  a treatment  provision be  added to  HB 342.   Fortunately,                                                               
most of  the treatment  agencies in Alaska  and Washington  use a                                                               
sliding scale; thus,  if an individual is charged  with fines, he                                                               
or she  won't be  prevented from treatment.   She  explained that                                                               
MADD supports  HB 342  because it  has seen  so much  damage from                                                               
high risk and  chronic drunk drivers.  In order  to deal with the                                                               
aforementioned,  the  state  must have  a  practical  operational                                                               
definition based on objective measures  growing out of the drunk-                                                               
driving  enforcement   and  criminal  justice  processes.     She                                                               
stressed  that the  definition  can't be  left  to the  screening                                                               
process that  involves subjective  elements such  as self-reports                                                               
and  professional assessments,  even  when  provided by  licensed                                                               
alcohol treatment specialists.   The sanctions need to  be in the                                                               
courtroom.                                                                                                                      
                                                                                                                                
Number 0419                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  recalled HB 4, legislation  from the Twenty-Second                                                               
Alaska  State Legislature,  that  at one  point  tied funding  of                                                               
wellness courts to  the newly imposed fines.   Chair McGuire said                                                               
that there is  no question that the wellness  courts are working,                                                               
and  therefore she  asked whether  MADD would  support tying  the                                                               
newly generated funding from HB 342 to support wellness courts.                                                                 
                                                                                                                                
MS.  CASHEN replied  yes and  noted that  MADD was  on record  as                                                               
supporting that  part of HB 4.   Furthermore, MADD has  also gone                                                               
on record in support of  the wellness court and therapeutic court                                                               
legislation.    She  said  that  MADD has  seen  the  success  of                                                               
[wellness and therapeutic  courts] in other states as  well as in                                                               
Alaska.   She  informed the  committee that  she was  the [first]                                                               
wellness court case manager in  Juneau and thus she has witnessed                                                               
its  success when  administered  properly and  with a  sufficient                                                               
amount of funds.                                                                                                                
                                                                                                                                
REPRESENTATIVE  GARA  surmised that  the  average  person on  the                                                               
street would agree that the fines  for DUI and repeat DUIs should                                                               
be  increased.   However,  at  some point  he  wondered when  the                                                               
increases  should  stop.     Representative  Gara  announced  his                                                               
support for increasing  the misdemeanor fines and  adding some to                                                               
the felony fines.  He pointed  out that in Alaska, $40,000 is two                                                               
years worth of  income for some people, and suggested  that he is                                                               
uncomfortable with that high a fine.                                                                                            
                                                                                                                                
MS. CASHEN recalled that about  three years ago, when she started                                                               
with MADD, Alaska was number one  in the nation for the number of                                                               
drunk driving fatalities per capita.   Since that time, three new                                                               
chapters of  MADD have formed, and  the focus [of all  the Alaska                                                               
chapters]  is education.   Because  of  groups such  as MADD  and                                                               
legislation such  as HB 4, Alaska  now ranks 26th [in  the number                                                               
of drunk  driving fatalities per  capita].  She  highlighted that                                                               
the  aforementioned  change  has  occurred over  the  last  three                                                               
years.                                                                                                                          
                                                                                                                                
MS.  CASHEN  informed the  committee  that  she is  a  recovering                                                               
alcoholic  with  over seven-and-a-half  years  of  sobriety.   In                                                               
order for  an alcoholic  who is  also a  chronic drunk  driver to                                                               
finally realize he or she has  an issue, that person has to reach                                                               
the bottom,  which is  at a different  spot for  each individual.                                                               
She  related that  many  of  the alcoholics  with  which she  has                                                               
spoken have  said that they  reached the bottom due  to financial                                                               
sanctions such as those proposed today.                                                                                         
                                                                                                                                
REPRESENTATIVE GARA agreed that  reaching the bottom is personal,                                                               
as  is the  appropriate sentence  for an  individual person.   He                                                               
suggested that a  $40,000 fine against someone  who makes $90,000                                                               
a year makes more sense than  a $40,000 fine on someone who makes                                                               
$10,000 a  year and  has a  family to  care for.   Representative                                                               
Gara opined  that justice should  be individualized.   He pointed                                                               
out  that  MADD  has  done  a good  job  convincing  people  that                                                               
sentences have  been too light  in the  past.  He  suggested that                                                               
perhaps the  fines don't need  to be reviewed [and  increased] so                                                               
severely  if  the jail  time  has  increased, which  might  bring                                                               
someone to the bottom more quickly than a $40,000 fine.                                                                         
                                                                                                                                
MS. CASHEN  said that it  has been some  time since there  was an                                                               
increase  in  the   jail  time  due  to  the   cost  the  state's                                                               
correctional system.   She explained that MADD is  trying to look                                                               
at a comprehensive program for  the high-risk driver, and what is                                                               
being  reviewed is  sanctions, which  serve as  a deterrent.   If                                                               
[fines]  deter  someone from  drinking  and  driving and  killing                                                               
someone,  then  the state  will  save  hundreds of  thousands  of                                                               
dollars.                                                                                                                        
                                                                                                                                
MS. CASHEN,  in response  to Representative  Anderson, reiterated                                                               
her belief that fines will deter individuals from driving drunk.                                                                
                                                                                                                                
Number 1019                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE mentioned  that even  with other  sections of  the                                                               
criminal  code,  the deterrent  argument  is  always raised,  but                                                               
another aspect  of sentencing is that  it is also punitive.   She                                                               
remarked that she  believes the suggestion of a  sliding scale is                                                               
a good one and has been done in other states.                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  opined  that   the  problem  of  drunk                                                               
driving will never  cease.  This legislation is one,  but not the                                                               
only, approach  to solving this  problem.  Although  the criminal                                                               
system  is used  as a  means of  enforcement and  it offers  some                                                               
recompense  to society,  with the  civil system  there's a  lower                                                               
standard  of proof  and the  injured victim  receives recompense.                                                               
Representative  Gruenberg recommended  that  one should  consider                                                               
various ways  of solving  the problem  [in order  to get  to] the                                                               
best solution.                                                                                                                  
                                                                                                                                
Number 1178                                                                                                                     
                                                                                                                                
LINDA  WILSON, Deputy  Director,  Public  Defender Agency  (PDA),                                                               
Department   of  Administration   (DOA),   related  that   public                                                               
defenders  recognize that  DUI is  a serious  problem in  Alaska.                                                               
She acknowledged all the efforts  by the legislature to make some                                                               
changes in this area.  She  pointed out that the statutes in this                                                               
legislation have  been changed numerous  times over the  past few                                                               
years.   Currently,  a first-time  offender receives  a mandatory                                                               
jail  sentence of  three days  and  a mandatory  minimum fine  of                                                               
$1,500  and the  individual's  license is  revoked  for 90  days.                                                               
Furthermore, those  in prison  face a  surcharge, which  can't be                                                               
higher than  $10,000, for  the cost  of imprisonment.   Moreover,                                                               
there is  a conviction  surcharge of $75  and the  individual may                                                               
very well lose  his/her permanent fund dividend.   The individual                                                               
will  have  to  do  some  alcohol  treatment.    This  particular                                                               
legislation  raises some  concerns because  it will  likely cause                                                               
there to be  more trials if people are disputing  the BAC levels.                                                               
Page  4 of  the legislation  says that  the [BAC]  level will  be                                                               
determined by  the trier of fact.   In some cases,  the BAC level                                                               
won't be addressed if it's over  .08 because the higher level may                                                               
not matter and  the issue may then be with  regard to whether the                                                               
individual  is driving  or not.   Therefore,  she predicted  that                                                               
there would  be more effort  put into establishing  or contesting                                                               
the BAC level when an individual is in the "fringe" area.                                                                       
                                                                                                                                
MS.  WILSON  remarked  that  there is  a  possibility  that  this                                                               
legislation  will be  challenged  on an  equal protection  basis.                                                               
For example,  if it's a  second misdemeanor offense,  the current                                                               
mandatory  minimum  fine is  $3,000  and  quadrupling that  would                                                               
result in a mandatory fine of  $12,000.  The amount of $12,000 is                                                               
over the  maximum fine  allowable for a  class A  misdemeanor and                                                               
thus the convicted individual will be  pulled out of the class in                                                               
which  he or  she is  convicted and  be treated  differently than                                                               
others in that class of offense.                                                                                                
                                                                                                                                
MS.  WILSON  turned  to  the benefits  of  putting  money  toward                                                               
treatment versus  imposing more penalties.   With all  the recent                                                               
changes related to  DUIs, she suggested that it  would be helpful                                                               
to wait  and see  what the benefits  would be  before drastically                                                               
raising  fines.    She  reminded   the  committee  that  the  PDA                                                               
basically  represent the  poor.   When the  fines are  doubled or                                                               
quadrupled in an offense that  is already experiencing heightened                                                               
penalties, people  may not  seek treatment because  of a  lack of                                                               
funds.   Ms. Wilson  suggested that  perhaps the  committee could                                                               
review  making more  incentives  for people  to obtain  treatment                                                               
rather than imposing more penalties.                                                                                            
                                                                                                                                
CHAIR  McGUIRE reiterated  her earlier  comments regarding  using                                                               
some of the funds from fines to fund wellness courts.                                                                           
                                                                                                                                
Number 1433                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS  remarked  that   he  believes  that  one                                                               
wouldn't see the same fatalities when  the BAC is .08 versus when                                                               
the BAC  is .28.   He  acknowledged that  he didn't  know whether                                                               
fining  someone  $40,000  would  help.    However,  he  expressed                                                               
concern that there  are still those individuals who  have been in                                                               
rehabilitation six times and jail didn't work.                                                                                  
                                                                                                                                
REPRESENTATIVE GARA agreed, adding that  that is why he mentioned                                                               
individualized justice points.   Representative Gara asked if Ms.                                                               
Wilson would be  able to provide the committee with  a summary of                                                               
the changes in the fines over the last five years.                                                                              
                                                                                                                                
MS. WILSON agreed to do so.                                                                                                     
                                                                                                                                
[HB 342 was held over.]                                                                                                         

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