Legislature(2003 - 2004)

05/08/2003 02:03 PM House TRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 217-DUI: LOWER BAC IF PREVIOUS CONVICTION                                                                                  
CO-CHAIR MASEK announced  that the final order  of business would                                                               
be HOUSE  BILL NO. 217, "An  Act relating to driving  while under                                                               
the influence  of an alcoholic beverage,  inhalant, or controlled                                                               
substance and to presumptions arising  from the amount of alcohol                                                               
in a  person's breath  or blood; and  providing for  an effective                                                               
Number 1582                                                                                                                     
LINDA SYLVESTER, Staff to  Representative Bruce Weyhrauch, Alaska                                                               
State  Legislature,  provided  the  following  testimony  as  the                                                               
sponsor  statement  for  HB  217   on  behalf  of  Representative                                                               
Weyhrauch, sponsor:                                                                                                             
     The  bill  that  is   under  consideration  before  you                                                                    
     proposes to lower the blood  alcohol content for repeat                                                                    
     DUI [driving  under the  influence] offenders  from the                                                                    
     current  level  of  0.08  to  0.04.   This  bill  is  a                                                                    
     priority of Mothers Against Drunk  Drivers, and it's an                                                                    
     important  piece  of   the  criminal  justice  system's                                                                    
     approach to  prosecuting drunk drivers and  keeping our                                                                    
     roads safe.   I want to emphasize that this  is a small                                                                    
     step and  it will  not overburden the  criminal justice                                                                    
     system or the courts with an influx of new arrests.                                                                        
     Just an  aside:  once this  legislation was introduced,                                                                    
     I got  a number  of phone  calls from  the departments,                                                                    
     asking  what the  sponsor's intent  of the  legislation                                                                    
     was.  They  were concerned that we were  hoping that it                                                                    
     would do a  lot.  I emphasized to them  that we thought                                                                    
     that we consider  this legislation to be  similar to an                                                                    
     aggravating factor  in sentencing; it's  just something                                                                    
     that is a very small step.                                                                                                 
     Right now, if  a police officer pulls  someone over, if                                                                    
     they have  probable cause to consider  that this person                                                                    
     might be impaired in their  driving, they pull him over                                                                    
     and then  they take a  breathalyzer test in  the field,                                                                    
     again, if they have probable  cause.  If it's real low,                                                                    
     if  it's  0.08,  for  example,   the  person  might  be                                                                    
     arrested -  chances are  would be  arrested -  and then                                                                    
     they're  taken  to  the   stationhouse  and  they  take                                                                    
     another  breathalyzer test  at  the  stationhouse.   My                                                                    
     understanding is, that's  the test that is  used by the                                                                    
     prosecution  and the  defense in  criminal prosecution.                                                                    
     If it's  marginal, if it's  just under or  around 0.08,                                                                    
     there's  a chance  that the  prosecutor won't  take the                                                                    
     case because they are  necessarily limited by resources                                                                    
     and they want  to take the winning  cases the distance.                                                                    
     With  this law  enacted, those  marginal cases  will be                                                                    
     better bets for the prosecutor to prosecute.                                                                               
Number 1681                                                                                                                     
MS. SYLVESTER testified:                                                                                                        
     In 1999, Alaska led the  nation in highway accidents in                                                                    
     which alcohol was  a factor.  Forty  out of seventy-six                                                                    
     accidents that  year involved  alcohol, which  is about                                                                    
     53  percent.   Statistically,  on  a nationwide  level,                                                                    
     approximately  one-third of  all  DUI convictions  each                                                                    
     year are  repeat offenders.   A  1994 study  found that                                                                    
     fatally  injured  drivers involved  in  alcohol-related                                                                    
     accidents were  eight times more  likely to have  had a                                                                    
     prior DUI conviction in the [preceding] five years.                                                                        
     Drivers with  DUI convictions whose licenses  have been                                                                    
     reinstated  are  six  to ten  times  more  likely  than                                                                    
     drivers the  same age and  gender to be arrested  for a                                                                    
     DUI or be involved in  a crash the year following their                                                                    
     reinstatement.   Over and over,  the numbers  show that                                                                    
     there  is  no  doubt,  repeat DUI  offenders  are  over                                                                    
     represented in alcohol-related fatal crashes.                                                                              
MS. SYLVESTER testified:                                                                                                        
     The question that  HB 217 poses is, "How  many bites of                                                                    
     the  apple do  you give  the drinking  drivers who  are                                                                    
     extremely high-risk  drivers?"   And then  the question                                                                    
     is, "Does  it make sense  to hold repeat  DUI offenders                                                                    
     to  the  same standards  as  people  who are  receiving                                                                    
     their  original citation  for  that  [offense]?"   This                                                                    
     bill is  not zero tolerance.   It's just a  simple tool                                                                    
     that gives  the prosecutors more leeway  in prosecuting                                                                    
     cases  that  are  borderline.    Is it  fair?    Is  it                                                                    
     draconian?     That's  the   question  that   we'll  be                                                                    
     addressing   at   table.     Before   you   make   that                                                                    
     determination,  consider that  these  people are  high-                                                                    
     risk  and   that  it's  the   second  and   the  repeat                                                                    
     offenders, statistically,  that are  on the  roads that                                                                    
     are  doing the  killing.   Incidentally, you'll  have a                                                                    
     first-time  DUI  offender  in  a  fatal  accident,  but                                                                    
     statistically it's  the repeats,  and that's  why these                                                                    
     people are being targeted.                                                                                                 
CO-CHAIR HOLM  referred to information included  in the committee                                                               
packet and asked why the lower  limit of 0.05 was used by Mothers                                                               
Against  Drunk  Drivers  (MADD) and  the  AMA  [American  Medical                                                               
Association],  whereas the  bill  refers to  the  amount of  0.04                                                               
MS.  SYLVESTER  responded that  MADD  recommended  0.05 and  that                                                               
there  are  six states  that  have  a  lower BAC  [blood  alcohol                                                               
concentration] level for second offenses.                                                                                       
CO-CHAIR  HOLM  interjected that  the  data  indicates that  MADD                                                               
supports 0.05 as  a BAC limit.   He asked, "Do you  know how much                                                               
alcohol needs  to be consumed -  one beer, one drink,  whatever -                                                               
to get to .04?"                                                                                                                 
MS. SYLVESTER responded that she  was similarly intrigued by that                                                               
question  and determined  that after  drinking 2  1/2 glasses  of                                                               
wine [within an hour, her] BAC level was at 0.04 [percent].                                                                     
CO-CHAIR HOLM  commented that this amount  was perhaps indicative                                                               
of a  low metabolic rate, as  it was his understanding  that 0.08                                                               
was reached  as the result of  drinking two beers.   He suggested                                                               
that  additional  medical  expertise  was  desirable  to  provide                                                               
further information,  saying that  he was  fearful that  this was                                                               
"draconian."  He pointed out that  it's one issue "if we're to be                                                               
against alcohol completely,  but if we say that  it mitigates the                                                               
ability of somebody  at 0.04 to make good  judgments driving, I'm                                                               
certainly not an expert, but I question the number."                                                                            
Number 1918                                                                                                                     
REPRESENTATIVE  FATE   said  he  had  heard   the  same  argument                                                               
regarding setting  the limit  at 0.01, 0.08,  and now  with 0.04.                                                               
He  said he  agreed with  Co-Chair Holm  and didn't  question the                                                               
intent of  getting drunk  drivers off the  road; however,  he was                                                               
concerned  with "where  social engineering  stops  and where  the                                                               
real worth  of this type  of legislation  begins."  He  said that                                                               
"we are currently on the  knife's edge of social engineering" and                                                               
that  he didn't  believe that  it  was his  responsibility to  do                                                               
"social engineering  in these halls."   He stated that  he wasn't                                                               
supportive of HB 217.                                                                                                           
MS. SYLVESTER  offered background information on  the origination                                                               
of  the legislation  and told  the committee  that in  the 1980s,                                                               
Maine had  an extremely high  rate of DUI  deaths.  In  1988, the                                                               
state was  the first to institute  a rate of 0.05  for second and                                                               
subsequent offenses.   Five  years later,  the results  were that                                                               
the  death rate  for DUI  accidents  was reduced  by 25  percent.                                                               
During  the same  time period,  the  rates in  other New  England                                                               
states had  increased by 46  percent.  In 1995,  Maine instituted                                                               
zero tolerance for convicted offenders.   Ms. Sylvester said that                                                               
HB 217  isn't zero  tolerance, but  it does  have a  track record                                                               
indicative of lives that could be saved.                                                                                        
CO-CHAIR HOLM  responded that  while "statistics  sometimes lie,"                                                               
these  statistics would  "bear out  what  you're saying"  because                                                               
times have  changed and  now, for  example, there  are designated                                                               
drivers, which didn't  used to exist as such.   He said he wasn't                                                               
sure that the  correlation could be drawn that  "because we don't                                                               
tolerate 0.05,  therefore it relates  directly to a  lessening of                                                               
people dying."                                                                                                                  
CO-CHAIR HOLM  continued that before  voting on HB 217,  he would                                                               
want to know the medical truth,  for example, of what a 165-pound                                                               
man,  with a  normal metabolism,  would  have to  drink to  reach                                                               
levels of 0.04 or  0.05.  He opined he didn't  want to be onerous                                                               
to  the extent  that "somebody  goes to  a softball  game, has  a                                                               
couple of beers, and can't drive  home."  He pointed out that one                                                               
issue would  be to argue  that nobody  should ever drink  a beer.                                                               
He noted  that he  doesn't drink and  that teetotalers  are fine,                                                               
but he wasn't supportive of the  idea of engineering laws so that                                                               
this would  be determined  by the state,  adding that  this would                                                               
not be sending an appropriate message.                                                                                          
CO-CHAIR MASEK noted that legislation  had previously been passed                                                               
to  comply with  the federal  level of  0.08.   She thought  that                                                               
according to  the Department  of Public  Safety, the  program had                                                               
been  doing  well  and there  had  been  tremendous  improvements                                                               
regarding  drinking-and-driving statistics,  with  the levels  at                                                               
0.08.   She told the  committee that  she shared the  concerns of                                                               
Co-Chair Holm  and Representative Fate  of changing the  level to                                                               
0.04, and that this was "getting intrusive."                                                                                    
Number 2169                                                                                                                     
CO-CHAIR MASEK  ascertained that  there was no  further testimony                                                               
on HB 217, and  said that in light of the  concerns brought up by                                                               
committee members, HB 217 would be held over.                                                                                   

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