Legislature(2015 - 2016)CAPITOL 106
03/15/2016 08:00 AM STATE AFFAIRS
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HB 162-DMV REVOCATION OF DRIVER'S LICENSE [Contains discussion of HB 205.] 8:57:19 AM CHAIR LYNN announced that the final order of business would be HOUSE BILL NO. 162 "An Act relating to administrative revocation of a driver's license; and repealing Rule 603(a)(3), Alaska Rules of Appellate Procedure." 8:57:32 AM REPRESENTATIVE TAMMY WILSON, Alaska State Legislature, as prime sponsor of HB 162, read the following sponsor statement [original punctuation provided]: When you make poor choices and decide to drive under the influence you will face criminal prosecution. Upon conviction by a jury of your peers you might face a sentence of imprisonment, fines, and use of an ignition interlock device after you regain the privilege of a driver license. If you are found not guilty of all charges, the court shall grant you access to driving license privileges. However, the state of Alaska possesses two separate bodies of authority to determine the rights and privileges of Alaskan drivers. Under AS 28.15.165, Department of Motor Vehicles (DMV) is authorized to conduct an administrative revocation of a driver's license when a chemical test of a person's breath shows an alcohol level of 0.08 or more, or the person refuses to take the chemical test. The administrative process by the DMV may occur whether or not there is a criminal charge for a court to process. If you wish to contest the administrative revocation you can schedule an administrative revocation hearing over the phone to review DMV's action. The hearing for review of action by the DMV is limited to the issue of whether the law enforcement officer had probable cause to believe that the person was operating a motor vehicle under the influence of drugs or alcohol. The DMV hearing officer will conduct the hearing, examine witnesses, review evidence, and make a final ruling on the issue. Administrative revocations by the DMV may be concurrent or in addition to any penalties applied by the courts and is at the discretion of the DMV hearing officer. The state of Alaska possesses two separate bodies of authority to determine the rights and privileges of Alaskan drivers. The state of Alaska court system provides for a trial by a jury of your peers which will review the evidence and deliberate on criminal sentencing. In comparison, the DMV's authority to impose conditions on the issuance of a limited license is designed to promptly address public safety and does not necessarily involve the considerations of the verdicts of the courts. In the end, anyone who presents probable cause to a law enforcement officer is considered guilty. Even if found not guilty by a jury of your peers through the Alaska Court System, the DMV has the authority to place additional burdens on the individual. HB 162 solves this dual burden of driver license revocations by repealing the DMVs independent authority to administrative revocation of a driver's license and place it solely within the court. 9:00:35 AM REPRESENTATIVE WILSON explained that the proposed legislation does not seek to change the procedures related to driving under the influence (DUI), but rather, to allow a person charged with DUI and exonerated by the court system to have his or her license returned and not receive any further penalties from the DMV. 9:01:31 AM CHAIR LYNN asked for clarification that someone arrested for DUI, who is found not guilty of DUI by the court, could still have his/her license revoked by the DMV. He asked also if that situation constitutes double jeopardy. REPRESENTATIVE WILSON agreed that there is an administrative review by the DMV in addition to the court proceeding; however, she added that it is not double jeopardy because it is considered to be similar to a civil case, as opposed to a criminal case subject to court procedures. REPRESENTATIVE STUTES expressed her support for HB 162. 9:03:19 AM REPRESENTATIVE VAZQUEZ expressed that she also supports HB 162. She asked for clarification that through the proposed legislation there would have to be a judicial process before the DMV could revoke a driver's license. REPRESENTATIVE WILSON responded that someone who is stopped for DUI by a law enforcement officer and given a ticket must then go to court; however, as she explained further, even if the individual is found not guilty by the court, he or she is still subject to the findings and penalty of a DMV administrative review. REPRESENTATIVE VAZQUEZ asked if the proposed legislation would affect federal funding. REPRESENTATIVE WILSON responded that she was unable to find any evidence that HB 162 would result in loss of federal funding. She questioned why there was a zero fiscal note attached as she speculated that the proposed legislation would eliminate the need for the two administrative hearing officers within the DMV. 9:05:27 AM REPRESENTATIVE WILSON responded to Chair Lynn's request for clarification on the issue of federal funding by saying that the federal government has, at times, linked federal funding with certain legislation, such as seat belt laws; however, she reiterated that she has found no evidence that the proposed legislation would affect any federal funding. She also emphasized that HB 162 does not change laws or consequences regarding DUI, but maintained that the DMV is not the proper place for adjudication. 9:06:24 AM REPRESENTATIVE KELLER stated his support for HB 162 and maintained his belief that in Alaska the administrative and judicial branches are stronger than the legislative branch, in part because the governor appoints the commissioner of the Department of Law (DOL). He opined that "anything we can do to separate justice from the enforcement and the legislative process ... cleans up our act." 9:07:14 AM NICOLE THAM, Driver Services Manager, Division of Motor Vehicles (DMV), Department of Administration (DOA), stated her concern that the committee and the public understand that it is not the DMV's duty to administratively revoke driver's licenses but that the Thirteenth Alaska State Legislature - to deal with the problem of drunk driving and increase safety on Alaska's roadways - adopted administrative license revocation. She added that one of the primary purposes of administrative license revocation was to impose swift licensing sanctions on impaired drivers to deter drunk driving. 9:08:13 AM CHAIR LYNN asked Ms. Tham to explain why there would be an administrative revocation in the case where the court found a person not guilty of a DUI. MS. THAM responded that there were two separate proceedings: the court proceeding to punish the criminal action and the civil proceeding - administrative revocation - to remove the drunk driver from the roadway. CHAIR LYNN asked for further explanation as to the basis for the DMV acting as a "second" court hearing when there has been a criminal proceeding that determined the driver was not impaired. MS. THAM explained that even if the action is dismissed in court, the two main issues - probable cause for arrest ("probable cause") and the validity of the breathalyzer test - are the only two issues that the DMV considers in its hearing. CHAIR LYNN contended that a stop for probable cause is a judgment call by an officer that the driver is impaired, but a subsequent court finding that the driver was not impaired suggests two different court proceedings. MS. THAM explained the process as follows: An officer will stop a driver if there is probable cause and administer a breathalyzer test. If the breathalyzer test result shows an alcohol concentration of .08 or greater, indicating that the driver is actually impaired, or if the driver refuses the breathalyzer test, the administrative proceeding is initiated. The driver is then served a notice and order of revocation which explains the process, why their driving privileges are being revoked, and serves as a seven-day temporary license. The driver has seven days to request an administrative hearing for review of the action against his/her driving privileges, and, if a hearing is not requested, the action is put on the record. She concluded by stating that often the separate court proceeding does not occur until months later. 9:11:32 AM REPRESENTATIVE STUTES reiterated her belief that the DMV's second-guessing the court's determination appears comparable to a double jeopardy and creates more hardship for the individual who has already had to go through the court process. 9:12:24 AM REPRESENTATIVE KELLER asked if, in Ms. Tham's opinion, the court system of Alaska is incapable of swift sanctions. MS. THAM responded that the court proceeding is completely independent of the DMV, and that the DMV is required by statutory provision to take action against a driver for a breathalyzer test result of .08 or greater who received a notice and order of revocation. She added that Alaska is in line with 43 other states, the District of Columbia, and the two territories of the Northern Mariana Islands and the Virgin Islands, in adopting licensing sanctions to deter drunk driving and remove impaired drivers swiftly from the road. The administrative revocation of the DMV often precedes the court action, because the DMV action is taken within seven days of the notice and order being served unless the action is stayed because the driver requested an administrative hearing. In most cases the DMV action precedes court action. 9:13:55 AM REPRESENTATIVE KELLER asked why there is a zero fiscal note attached to HB 162. MS. THAM explained that the DMV does other hearings for motor vehicle and driver's license issues, and although the bulk of the hearings involve administrative revocation of driving privileges, there are hearings related to title disputes, personalized plate disputes, and medical cancellation. REPRESENTATIVE KELLER reiterated his belief that the proposed legislation should have a positive fiscal note due to the stated reduction in duties. MS. THAM responded that the full fiscal implication of HB 162 is unclear at this time. 9:15:10 AM MS. THAM, in response to Representative Vazquez's question about when the notice of revocation is issued, relayed that it is issued at the time of arrest. REPRESENTATIVE VAZQUEZ asked what the wait time was for an administrative hearing, if requested. MS. THAM replied that the hearing requests are processed as soon as they are received, and hearings are scheduled about 30-45 days beyond that point. She added that once the hearing is granted the action is stayed and is not applied to the driver's record until an affirmed decision at the hearing. If dismissed, the action is not added to the record. REPRESENTATIVE VAZQUEZ asked if there is notice of the right to appeal the decision in court once the administrative decision is issued. MS. THAM responded yes and added that the decision may be appealed through the superior court within 30 days of the decision of the hearing. 9:17:14 AM REPRESENTATIVE VAZQUEZ requested Ms. Tham explain the instances in which the DMV does not adhere to a court decision but proceeds to revoke the license of an individual even though he/she was found not guilty by a court. MS. THAM explained that since the administrative action usually precedes the court action, the administrative action is not dependent at all on the court action. She added that the criteria for the DMV action has a lower threshold than that of the court system - the DMV criteria being probable cause and the results of the breathalyzer test. REPRESENTATIVE VAZQUEZ asked for confirmation that the DMV has a separate basis for taking action against someone's license from that of the court system. MS. THAM confirmed that under AS 28.15.165 that statement was correct. REPRESENTATIVE VAZQUEZ asked if the DMV action occurred regardless of the court's decision. MS. THAM answered in the affirmative. 9:18:35 AM REPRESENTATIVE KREISS-TOMKINS asked how many full-time hearing officers are tasked with the administrative hearings described. MS. THAM responded that there are two full-time hearing officers who review DMV hearings of all types, and there are six administrative licensing staff who perform some aspect of the administrative revocation process. REPRESENTATIVE KREISS-TOMKINS asked what portion of staff time is spent on license revocations. MS. THAM expressed that it would be difficult to estimate the amount of time, and she said she would provide the committee with that information. 9:20:21 AM REPRESENTATIVE VAZQUEZ asked how many times the DMV suspended someone's license when the court determined him/her not guilty of DUI. MS. THAM stated that the DMV has data on the number of administrative revocations and administrative hearings, but no data on criminal conviction, as that would be with the court. REPRESENTATIVE KREISS-TOMKINS asked Ms. Tham to cite the number of administrative revocations per year and the average number of revoked licenses in Alaska at any given time. 9:22:17 AM REPRESENTATIVE VAZQUEZ expressed that although she sees the merit of swift action by the DMV, she doesn't understand how anyone who has his/her license revoked by the DMV after a judicial action exonerates him/her is being afforded due process. She added that she did recognize the merit of an administrative process that is more responsive than the longer and more cumbersome criminal process. REPRESENTATIVE WILSON asked rhetorically, "Aren't you innocent until proven guilty?" She further attested that a DMV action that precedes a court decision counters that principle. 9:24:59 AM REPRESENTATIVE VAZQUEZ voiced her opinion that the matter under discussion was one of balance. She declared that public safety is an important consideration - that is, the issue of drivers suspected of DUI being allowed on the roadways. She also conceded that having one's driving privileges revoked is a serious impediment in Alaska. She opined that a long administrative process is problematic but that the judicial system would move even slower. She expressed a desire to hear testimony from the court system. CHAIR LYNN suggested the possibility of these issues being addressed in the House Judiciary Standing Committee, which is the next committee of referral for HB 162. 9:27:04 AM REPRESENTATIVE KREISS-TOMKINS requested the number of license revocations annually in Alaska. MS. THAM answered that in 2008 there were 5,902 administrative revocations for DUI, and in 2014 there were 3,563, a 40 percent reduction. She asked the committee members to consider the decrease in DUIs in light of all the deterrents to drunk driving, either singularly or in combination, namely sanctions, convictions, administrative revocations, and all the other requirements. She stressed that only 25-29 percent of people who get an administrative revocation request a review. REPRESENTATIVE KREISS-TOMKINS asked if administrative revocations exist in other states. MS. THAM repeated her claim from earlier that administrative revocations exist in 43 other states, the District of Columbia, and the two territories of the Northern Mariana Islands and the Virgin Islands. 9:29:01 AM REPRESENTATIVE KREISS-TOMKINS asked Ms. Tham and the sponsor if either knew how HB 162 differs from or relates similarly to the criminal justice reform bill [HB 205, Criminal Law/Procedure; Driv Lic; Pub Aid] heard in the House Judiciary Standing Committee the previous day, and he mentioned specifically the provisions in HB 205 that relate to the revocation of driver's licenses. REPRESENTATIVE WILSON said that she spoke with Senator Coghill's legislative aide, who asserted that the content of HB 162 was not included in HB 205 and there was no conflict between the two proposed legislations. MS. THAM mentioned that she was aware of discussions about proposed legislation addressing the issue of limited licenses. She also noted discussions concerning the review of criminal laws and practices within AS 28, which includes the dual system of administrative and judicial license revocation. 9:31:09 AM REPRESENTATIVE STUTES opined that she understands that having a driver's license is a privilege. She expressed her concern that the DMV is overstepping the bounds of its expertise. She went on to give the example of a homeless man living in a non- operational truck who received a DUI for drinking in his truck. She said that the court dismissed the DUI, but the DMV required the individual get a full mental evaluation before returning his driver license to him. 9:32:50 AM REPRESENTATIVE VAZQUEZ declared that her greatest concern is the situation in which the court has ruled and the DMV overturns the decision. She opined that she also understands the validity of the DMV removing an impaired driver from the street with swift action. She stated further that the courts are bogged down and cannot swiftly take action as can the DMV. She maintained that the issue is "when the court takes action and finds someone not guilty for whatever reason, that DMV not be able to usurp that judicial decision." She repeated her belief that there is validity to having an administrative process that is more flexible and faster than the judicial system. 9:35:23 AM REPRESENTATIVE KELLER asked Representative Vazquez if she would be comfortable relying on the three House State Affairs Standing Committee members, who also serve on the House Judiciary Standing Committee, to bring her issues up in the House Judiciary Standing Committee hearing. He restated her issue as the balance between the considerations for public safety against administrative authority for license revocation. He expressed that the desire for the court system to handle license revocation was not at all a reflection on the administrative review system but said that he thought it was an unnecessary duplication. REPRESENTATIVE VAZQUEZ suggested a possible amendment to tighten the timeframe for the administrative license revocation review process. 9:37:39 AM REPRESENTATIVE WILSON responded that she understood Representative Vazquez's concern but asserted that the court's timeframe is governed by that process and the DMV's timeframe precedes that of the court. She offered to work with committee members to consider amendments to alleviate their concerns. She reiterated her belief that the court system process should be the only process and it should precede license revocation. REPRESENTATIVE STUTES agreed with Representative Wilson's assessment of the current license revocation procedures and said, "You don't punish somebody for something before you know they've done it." She reiterated that she supported the bill. 9:40:39 AM REPRESENTATIVE KREISS-TOMKINS asked Nancy Meade if she knew the usual wait times and process times for someone charged with a DUI [in the court system]. 9:41:47 AM NANCY MEADE, General Council, Administrative Staff, Office of the Administrative Director, Alaska Court System, responded to the question posed by Representative Kreiss-Tomkins by stating that the average time for disposition of misdemeanor DUIs - that is, first and second DUIs - is four months, and the average time for a felony DUI is nine months. She stated that there was great variation among the times. She also reiterated Ms. Tham's assertion that the number of DUIs has decreased and the number of DUIs in 2015 was 3,650. 9:42:59 AM REPRESENTATIVE SPOHNHOLZ asked how many of the 3,650 convictions were felony. MS. MEADE responded that in 2015 there were 223 convictions for felony DUI and 3,371 convictions for misdemeanor DUI. She explained that these numbers referred to convictions and not charges. She added that there is a low acquittal rate for DUI charges. 9:43:51 AM REPRESENTATIVE VAZQUEZ asked for the acquittal rate for the misdemeanor cases. MS. MEADE replied that she didn't know but could provide that information to the committee along with the dismissal rate. 9:44:20 AM MS. MEADE repeated the number of DUIs for Representative Spohnholz, which is about 3600. She added one point of clarification regarding HB 205. She said that although HB 205 does not have a provision similar to HB 162, it does have several provisions about giving limited licenses back to people who have had a DUI. She directed the committee's attention to Section 83 of HB 205, which says that if a court acquits someone of a DUI and their license had been revoked administratively, the court decision would stop that administrative revocation at that point in time. She added that almost always the administrative revocation takes place before the court disposition of the case. REPRESENTATIVE SPOHNHOLZ asked the sponsor if the proposed legislation would treat felony and misdemeanor DUIs differently. REPRESENTATIVE WILSON answered that they would be treated alike in the proposed legislation - the intent being to put jurisdiction back into the court system. REPRESENTATIVE VAZQUEZ asked for acquittal rates for the different categories of DUI. MS. MEADE agreed to provide that information to the committee. 9:46:43 AM REPRESENTATIVE TALERICO asked Representative Wilson for the current procedures when someone is stopped by an officer and refuses a breathalyzer test. REPRESENTATIVE VAZQUEZ alleged that no one with that expertise is present who can answer Representative Talerico's question. REPRESENTATIVE WILSON responded that a person suspected of a DUI does not walk away. She contended that someone suspected of a DUI is given notice of the DMV procedures and timeline before any judicial proceeding. She stated her belief that this scenario constitutes a presumption of guilt before a person has been to court and received due process. 9:49:28 AM REPRESENTATIVE VAZQUEZ voiced her assumption that the acquittal rate is about 5-10 percent. She offered that someone arrested for serial assault or serial murder would have to wait for judicial action. She also noted that an employee accused of serious misconduct is suspended immediately. She suggested that the balance for public safety and interest is a consideration for immediate action in those cases. REPRESENTATIVE WILSON reiterated that a person should be innocent until proven guilty. She claimed that she knows of no other scenario where you must go through an administrative hearing and be punished before a court proceeding. She cited the example of a shoplifter. 9:51:59 AM REPRESENTATIVE VAZQUEZ countered that in the case of suspected shoplifting and certainly more serious accusations there may be a number of pre-trial conditions set by court before the judicial process, including bail, loss of freedom of movement, a court-appointed custodian, travel restrictions, and imprisonment, all to safeguard the public interests. REPRESENTATIVE WILSON maintained that the court determined those conditions, not the DMV. 9:54:08 AM REPRESENTATIVE KELLER asked if the court could restrict driving as a pretrial condition in a simple but swift process. REPRESENTATIVE VAZQUEZ expressed concern for the added burden to the court to be tasked in that way but acknowledged the possibility of the court restricting driving as a pretrial condition. CHAIR LYNN asked Representative Vazquez to work with the sponsor to address her concerns before HB 162 was heard in the House Judiciary Standing Committee, if it moved out of the current committee. REPRESENTATIVE SPOHNHOLZ asked if HB 162 would increase the workload of the court system. REPRESENTATIVE WILSON responded that HB 162 would not increase the workload for the court system and relayed that the court system offered no fiscal note for the proposed legislation. CHAIR LYNN closed public testimony on HB 162. 9:56:28AM REPRESENTATIVE KREISS-TOMKINS stated his belief that there is room for improvement in the degree of diligence with regard to the fiscal note. 9:57:14 AM REPRESENTATIVE KELLER moved to report HB 162 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HB 162 was reported out of the House State Affairs Standing Committee.