Legislature(2003 - 2004)

05/05/2004 08:24 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
        HB 342-DRIVING UNDER INFLUENCE/ALCOHOL OFFENSES                                                                     
                                                                                                                                
MR. CODY RICE,  staff to Representative Carl Gatto,  co-sponsor of                                                              
HB 342,  said this  legislation addresses  several issues  related                                                              
to  driving  under  the influence  (DUI),  limited  licenses,  and                                                              
look-back provisions.  HB 342 sets up a situation  where, based on                                                              
blood alcohol  content (BAC),  the most  egregious offenders  will                                                              
be required  to have  ignition interlocks  for  six months  to one                                                              
year. It also  contains provisions that allow  a 15-year look-back                                                              
for misdemeanor  DUI offenses. Currently,  the law provides  for a                                                              
lifetime look-back.  Felony DUIs would  have a 10-year  window. HB                                                              
342  also  contains   provisions  for  the  granting   of  limited                                                              
licenses  and requires  the offender  to  go through  a series  of                                                              
steps. He offered to answer questions.                                                                                          
                                                                                                                                
SENATOR  THERRIAULT asked  for further  explanation  of the  look-                                                              
back provisions.                                                                                                                
                                                                                                                                
MR. RICE  explained that under  current law, the  felony look-back                                                              
provision  requires  that  a  third  offense  within  eight  years                                                              
qualifies as  a felony.  In 2006, the  look-back time  period will                                                              
increase  to ten years.  The misdemeanor  look-back is  unlimited.                                                              
This bill would limit that window to 15 years.                                                                                  
                                                                                                                                
SENATOR FRENCH asked how the 15-year time limit was arrived at.                                                                 
                                                                                                                                
MR.  RICE  said  that  was  a  provision  of  HB  175,  which  was                                                              
Representative Rokeberg's bill.                                                                                                 
                                                                                                                                
MS.  AMANDA WILSON,  staff to  Representative Rokeberg,  explained                                                              
in looking  at other states' provisions,  15 years is  the longest                                                              
look-back  provision,  except  in Massachusetts.  The  only  other                                                              
state with  a lifetime  look-back provision  is Massachusetts  but                                                              
the  consequences  for subsequent  offenses  are  less harsh  than                                                              
Alaska's. Currently,  Alaska has  one of the harshest  punishments                                                              
for subsequent  offenses in  the nation. She  noted the  intent is                                                              
not to  go easy on  subsequent offenders  but to find  some number                                                              
to make the law more just.                                                                                                      
                                                                                                                                
SENATOR  THERRIAULT asked  if an  intoximeter  works in  extremely                                                              
cold temperatures.                                                                                                              
                                                                                                                                
MR. RICE  said he believes  Senator Therriault is  questioning how                                                              
the  ignition   interlock  works,   and  answered  that   ignition                                                              
interlocks  have been  used in  Canada  and Poland  and have  been                                                              
approved for use  in Alaska since 1996. They have  not been widely                                                              
used because  they are not  commercially viable, since  people are                                                              
not required  to use  them. He noted  that judges  do not  want to                                                              
impose  their  use  because  they are  not  easily  available  and                                                              
manufacturers do not  want to market them here since  they are not                                                              
widely used.  This bill will solve  that problem by  requiring the                                                              
most egregious  offenders to use  them. He said his  data suggests                                                              
that about 50 percent  of the DUIs in Alaska are  double the legal                                                              
limit. People in  that range would be required to  use an ignition                                                              
interlock for six months after the offense.                                                                                     
                                                                                                                                
He informed  members that he has  talked to an  ignition interlock                                                              
distributor  who   has  expressed  a  willingness   to  make  them                                                              
available in Alaska if this bill passes.                                                                                        
                                                                                                                                
CHAIR SEEKINS  asked about  the reliability  and effectiveness  of                                                              
interlock devices.                                                                                                              
                                                                                                                                
MR. RICE  said while  researching that  question, he learned  that                                                              
what  these companies  are selling  is  their reputations  because                                                              
their  devices  cannot  be  bypassed.  Part  of  the  reason  they                                                              
require a  minimum pool of ignition  interlock users is  that they                                                              
must do  background checks  on installers and  make sure  they are                                                              
well  trained.  He  said  they  have  been  proven,  according  to                                                              
journal  articles, to  reduce  recidivism. MADD  is  on record  in                                                              
support. He  explained that ignition  interlocks are  located near                                                              
the steering column.  The driver must blow into  the device before                                                              
the car  will start.  They are fairly  complex to prevent  someone                                                              
other  than  the  driver  to  activate  them.  They  also  require                                                              
retests while  the car is  being driven  and will log  whether the                                                              
retest was performed.  The cost is about $3 per  day; the offender                                                              
would lease the device and pay for its installation.                                                                            
                                                                                                                                
SENATOR OGAN  questioned how such  a device could ensure  that the                                                              
driver was activating it, not someone else.                                                                                     
                                                                                                                                
MR. RICE  said no device  could assure that  but the fact  is that                                                              
it is  highly unlikely that a  sober passenger would  activate the                                                              
device for a drunk driver, which is a crime in existing statute.                                                                
                                                                                                                                
SENATOR  OGAN commented  that it  appears the  only way  to get  a                                                              
limited  license under  the bill  is to have  an interlock  device                                                              
installed.                                                                                                                      
                                                                                                                                
MR.  RICE said  a person  could receive  a limited  license for  a                                                              
first  offense   without  an  interlock  device.   The  bill  also                                                              
contains  a separate  provision  from HB  175  that addresses  the                                                              
wellness court program.                                                                                                         
                                                                                                                                
MS. WILSON  explained that  the wellness  court program  currently                                                              
has about  40 participants.  That court  only takes  misdemeanants                                                              
and   provides   an  intensive   outpatient   treatment   program.                                                              
Participants must  report to the court regularly  and are required                                                              
to  take   naltrexone.  Upon   graduation   after  18  months   of                                                              
successful   treatment,  participants   are  provided   a  limited                                                              
license  without an  ignition interlock  device.  An offender  who                                                              
does not  participate is able to  get a limited license  within 90                                                              
days but must use an interlock device.                                                                                          
                                                                                                                                
SENATOR FRENCH  referred to  lines 6-7 on  page 1, and  asked what                                                              
prompted that language.                                                                                                         
                                                                                                                                
MR. RICE  said the legal drafter  used that language to  allow the                                                              
court to  impose the  use of an  interlock device  as part  of the                                                              
sentence.   Initially, ignition  interlocks were only  assigned as                                                              
part of probation requirements.                                                                                                 
                                                                                                                                
CHAIR  SEEKINS   furthered  that  the  judge  could   require  the                                                              
offender to use  the device for a certain time period  even if the                                                              
offender was not on probation.                                                                                                  
                                                                                                                                
MR. RICE agreed.                                                                                                                
                                                                                                                                
SENATOR FRENCH asked how that would be enforced.                                                                                
                                                                                                                                
MR. RICE  said in all  cases, the  offender's license  is revoked,                                                              
either judicially  or administratively. To reinstate  the license,                                                              
the offender  would have  to provide proof  of certain  actions to                                                              
DMV  personnel.  That  might  include showing  a  letter  from  an                                                              
interlock device company saying the device had been installed.                                                                  
                                                                                                                                
CHAIR SEEKINS asked Ms. Cashen to testify.                                                                                      
                                                                                                                                
10:08 a.m.                                                                                                                      
                                                                                                                                
MS.  CINDY CASHEN,  representing  four  MADD chapters  in  Alaska,                                                              
stated  support for  this  legislation and  the  use of  interlock                                                              
devices.  According   to  the   studies  conducted   in  Maryland,                                                              
California,  and  Alberta,  Canada,  they  have  worked  in  other                                                              
states. The  use of  the devices  resulted in a  50 to  90 percent                                                              
reduction of  subsequent offenses  compared to offenders  who were                                                              
not  required  to  use  them. She  said  that  MADD  supports  the                                                              
wellness  court provision  in  the bill.  The  wellness court  has                                                              
been  successful.  She  commented,  "We've seen  that  by  helping                                                              
wellness court clients  get back on the road  quicker, they become                                                              
a  contributor  to  our  community  as  opposed  to  draining  our                                                              
community of many things, among them resources."                                                                                
                                                                                                                                
MS. CASHEN said  the amendment is of concern to  MADD because [the                                                              
bill] as  written, will make  it easier  for drunk drivers  to get                                                              
their  licenses  back  and  continue  to  drink  and  drive.  MADD                                                              
believes that the  first and second time a person  makes a mistake                                                              
a  look-back of  15  years  is appropriate  but  not  for a  third                                                              
offense. Studies show  that a drunk driver drives  between 200 and                                                              
2,000 times  before being  caught and,  according to the  National                                                              
Transportation  Safety  Board,  it  takes  10 years  to  catch  an                                                              
offender the second  time. She said the amendment  is a reasonable                                                              
request.  If a person  is caught  three or  more times,  the court                                                              
should be  able to look-back in  the records forever.  She pointed                                                              
out  that  some  of  the  people  that  want  the  amendment  that                                                              
shortens the  look-back provision  to 15 years  is a  multiple DUI                                                              
offenders,  one an  8-time  offender. This  bill  will allow  that                                                              
person to  get his  license back sooner.  She cautioned  that many                                                              
high-risk  DUI offenders  have  been caught  more  than twice,  so                                                              
this amendment  is very dangerous.  She asked members  to consider                                                              
the MADD amendment.                                                                                                             
                                                                                                                                
SENATOR FRENCH  asked Ms. Cashen if  she was saying that  15 years                                                              
is  an acceptable  look-back time  period  for a  first or  second                                                              
offense, but a  lifetime look-back period should apply  to a third                                                              
offense.                                                                                                                        
                                                                                                                                
MS.  CASHEN  said  that  is  not  MADD's  official  position.  She                                                              
explained, "With MADD  national and MADD chapters, we  are able to                                                              
work  within  our states  -  we  are  given  a certain  amount  of                                                              
freedom  and this  is  one  that we've  come  up with  within  the                                                              
state."                                                                                                                         
                                                                                                                                
REPRESENTATIVE CARL  GATTO, prime sponsor  of HB 342,  expressed a                                                              
concern that  if the bill is amended,  it will have to  go back to                                                              
the  House for  concurrence  and, due  to  time constraints,  that                                                              
could prevent  passage of the bill.  He said the goal  of the bill                                                              
is to prevent drunk  drivers from driving. He said  with that goal                                                              
in mind,  he asked whether the  amendment will further  that goal.                                                              
He  does  not believe  there  is  enough  evidence to  prove  that                                                              
extending the  look-back time period  will be beneficial.  He said                                                              
his intent is  to provide motivation and encouragement  for people                                                              
who  "have  been   on  the  wrong  side"  and  to   give  them  an                                                              
opportunity to  correct their actions.  If indeed they are  out of                                                              
the loop, they will drive drunk regardless of anything.                                                                         
                                                                                                                                
He  said  he believes  15  years  is  a  good, long  time  and  he                                                              
questioned  whether records  will exist  in some  instances for  a                                                              
longer time  period. He  said this  bill needs some  restrictions.                                                              
He said he  believes this bill is  an excellent one that  has wide                                                              
support and he does  not want it to be jeopardized.  He noted that                                                              
extending the look-back  provision could be considered  next year.                                                              
He repeated that  his goal is to "get the drunks  out of the cars"                                                              
and not  to look-back to  get anyone who  has ever been  guilty of                                                              
anything.                                                                                                                       
                                                                                                                                
SENATOR FRENCH noted that he had a schedule conflict.                                                                           
                                                                                                                                
TAPE 04-64, SIDE A                                                                                                            
                                                                                                                                
CHAIR   SEEKINS   felt   Representative   Gatto's   argument   was                                                              
compelling  even   though  he  agrees  with  the   intent  of  the                                                              
amendment.  He  expressed  concern  about  the late  date  of  the                                                              
session and  said he  would like  to see the  concept of  the bill                                                              
embodied in  law this year. He also  pointed out that  a very long                                                              
look-back  period  could encourage  offenders  to  plead to  other                                                              
offenses  that would not  go on  their records  as DUIs.  He asked                                                              
the will of the committee.                                                                                                      
                                                                                                                                
SENATOR OGAN  expressed support  for Amendment  1, which  reads as                                                              
follows, and moved to adopt it.                                                                                                 
                                                                                                                                
                      A M E N D M E N T  1                                                                                    
                                                                                                                                
IN THE SENATE JUDICIARY COMMITTEE                                                                                               
                                                                                                                                
TO CS HB 342(FIN)AM                                                                                                             
                                                                                                                                
     Page 4, lines 4-7 Delete all material and insert:                                                                        
                                                                                                                              
          "(e) In (d)(2) of this section, "previously                                                                         
     convicted"  means  having  been  convicted  in  this  or                                                                   
     another jurisdiction  within the 15 years  preceding the                                                                   
     date of  the present  offense, of  any of the  following                                                                   
     offenses;   however,  convictions   for  any  of   these                                                                   
     offenses,  if arising  out of a  single transaction  and                                                                   
     single arrest, are considered one previous conviction:                                                                     
                                                                                                                                
               (1) operating a motor vehicle, aircraft, or                                                                      
     watercraft   in  violation   of  AS   28.35.030  or   in                                                                   
     violation  of  another  law or  ordinance  with  similar                                                                   
     elements,  except that  the other law  or ordinance  may                                                                   
     provide  for a lower  level of  alcohol in the  person's                                                                   
     blood or breath than imposed under AS 28.35.030;                                                                           
                                                                                                                                
               (2) refusal to submit to a chemical test in                                                                      
     violation  of AS 28.35.032  or in  violation of  another                                                                   
     law or ordinance with similar elements; or                                                                                 
               (3) operating a commercial motor vehicle in                                                                      
     violation  of AS 28.33.030  or in  violation of  another                                                                   
     law  or ordinance  with  similar elements,  except  that                                                                   
     the  other law  or  ordinance may  provide  for a  lower                                                                   
     level of  alcohol in the  person's blood or  breath than                                                                   
     imposed under AS 28.33.030."                                                                                               
                                                                                                                                
     Section 4 of  the bill (page 4, lines 8-26):  Delete all                                                                 
     material.                                                                                                                
                                                                                                                              
     Add  two  new sections  to  the  bill  as shown  on  the                                                                 
     following two pages.                                                                                                     
                                                                                                                                
     "*Sec.___. AS 28.35.030(b) is amended to read:                                                                           
                                                                                                                                
          (b) Except as provided under (n) of this section,                                                                     
     driving  while  under  the  influence  of  an  alcoholic                                                                   
     beverage, inhalant,  or controlled substance  is a class                                                                   
     A  misdemeanor. Except  as  provided under  (p) of  this                                                                   
     section, upon conviction,                                                                                                  
               (1) the court shall impose a minimum                                                                             
     sentence of imprisonment of                                                                                                
                    (A) not less than 72 consecutive hours                                                                      
     and a  fine of not  less than $1,500  if the person  has                                                                   
     not been previously convicted;                                                                                             
                    (B) not less than 20 days and a fine of                                                                     
     not less than  $3,000 if the person has  been previously                                                                   
     convicted once  within the  15 years preceding  the date                                                               
     of the present offense;                                                                                                
                    (C) not less than 60 days and a fine of                                                                     
     not less than  $4,000 if the person has  been previously                                                                   
     convicted twice  and is not subject to  punishment under                                                                   
     (n) of this section;                                                                                                       
                    (D) not less than 120 days and a fine                                                                       
     of  not  less  than  $5,000   if  the  person  has  been                                                                   
     previously convicted  three times and is not  subject to                                                                   
     punishment under (n) of this section;                                                                                      
                    (E) not less than 240 days and a fine                                                                       
     of  not  less  than  $6,000   if  the  person  has  been                                                                   
     previously  convicted four times  and is not  subject to                                                                   
     punishment under (n) of this section;                                                                                      
                    (F) not less than 360 days and a fine                                                                       
     of  not  less  than  $7,000   if  the  person  has  been                                                                   
     previously  convicted more  than four  times and is  not                                                                   
     subject to punishment under (n) of this section;                                                                           
               (2) the court may not                                                                                            
                    (A) suspend execution of sentence or                                                                        
     grant  probation except  on  condition  that the  person                                                                   
     serve  the  minimum  imprisonment   under  (1)  of  this                                                                   
     subsection;                                                                                                                
                    (B) suspend imposition of sentence;                                                                         
               (3) the court shall revoke the person's                                                                          
     driver's  license, privilege to  drive, or privilege  to                                                                   
     obtain  a license  under  AS  28.15.181, and  may  order                                                                   
     that  the motor  vehicle, aircraft,  or watercraft  that                                                                   
     was  used in  commission  of  the offense  be  forfeited                                                                   
     under AS 28.35.036; and                                                                                                    
               (4) the court may order that the person,                                                                         
     while  incarcerated or  as a condition  of probation  or                                                                   
     parole,  take a drug  or combination  of drugs  intended                                                                   
     to prevent the  consumption of an alcoholic  beverage; a                                                                   
     condition  of probation  or  parole  imposed under  this                                                                   
     paragraph  is   in  addition  to  any   other  condition                                                                   
     authorized under another provision of law."                                                                                
                                                                                                                              
     "*Sec.___. AS 28.35.032(g) is amended to read:                                                                           
                                                                                                                                
          (g) Except as provided under (r) of this section,                                                                     
     upon conviction,                                                                                                           
               (1) the court shall impose a minimum                                                                             
     sentence of imprisonment of                                                                                                
                    (A) not less than 72 consecutive hours                                                                      
     and a  fine of not  less than $1,500  if the person  has                                                                   
     not been previously convicted;                                                                                             
                    (B) not less than 20 days and a fine of                                                                     
     not less than  $3,000 if the person has  been previously                                                                   
     convicted once  within the  15 years preceding  the date                                                               
     of the present offense;                                                                                                
                    (C) not less than 50 days and a fine of                                                                     
     not less than  $4,000 if the person has  been previously                                                                   
     convicted twice  and is not subject to  punishment under                                                                   
     (r) of this section;                                                                                                       
                    (D) not less than 120 days and a fine                                                                       
     of  not  less  than  $5,000   if  the  person  has  been                                                                   
     previously convicted  three times and is not  subject to                                                                   
     punishment under (r) of this section;                                                                                      
                    (E) not less than 240 days and a fine                                                                       
     of  not  less  than  $6,000   if  the  person  has  been                                                                   
     previously  convicted four times  and is not  subject to                                                                   
     punishment under (r) of this section;                                                                                      
                    (F) not less than 360 days and a fine                                                                       
     of  not  less  than  $7,000   if  the  person  has  been                                                                   
     previously  convicted more  than four  times and is  not                                                                   
     subject to punishment under (r) of this section;                                                                           
               (2) the court may not                                                                                            
                    (A) suspend execution of sentence or                                                                        
     grant  probation except  on  condition  that the  person                                                                   
     serve  the  minimum  imprisonment   under  (1)  of  this                                                                   
     subsection;                                                                                                                
                    (B) suspend imposition of sentence;                                                                         
               (3) the court shall revoke the person's                                                                          
     driver's  license, privilege to  drive, or privilege  to                                                                   
     obtain  a license  under  AS  28.15.181, and  may  order                                                                   
     that  the motor  vehicle, aircraft,  or watercraft  that                                                                   
     was  used in  commission  of  the offense  be  forfeited                                                                   
     under AS 28.35.036; and                                                                                                    
               (4) the court may order that the person,                                                                         
     while  incarcerated or  as a condition  of probation  or                                                                   
     parole,  take a drug  or combination  of drugs  intended                                                                   
     to prevent the  consumption of an alcoholic  beverage; a                                                                   
     condition  of probation  or  parole  imposed under  this                                                                   
     paragraph  is   in  addition  to  any   other  condition                                                                   
     authorized under another provision of law; and                                                                             
               (5) the sentence imposed by the court under                                                                      
     this subsection  shall run consecutively with  any other                                                                   
     sentence of imprisonment imposed on the person."                                                                           
                                                                                                                              
     Renumber bill sections accordingly.                                                                                      
                                                                                                                                
SENATOR THERRIAULT said he prefers that amendments be prepared                                                                  
by the Legal and Research Services Division and did not know                                                                    
whether he  would support the  amendment without knowing  what the                                                              
final product would be.                                                                                                         
                                                                                                                                
SENATOR OGAN withdrew his motion to adopt Amendment 1.                                                                          
                                                                                                                                
MS. CASHEN  informed members  that the bill  has a Senate  Finance                                                              
Committee  referral. She  cautioned  that the  amended bill  would                                                              
have to  move out  of that committee  by Thursday  for it  to pass                                                              
the  legislature.   She  noted  that   MADD  wants  to   see  this                                                              
legislation enacted.                                                                                                            
                                                                                                                                
CHAIR SEEKINS  proposed that the  Senate Judiciary  Committee take                                                              
action  on the  bill today  and that  the sponsor  and Ms.  Cashen                                                              
speak with  the drafter to  make sure there  are no  problems with                                                              
the amendment and let the Senate Finance Committee address it.                                                                  
                                                                                                                                
SENATOR   OGAN  moved   CSHB   342(FIN)am   from  committee   with                                                              
individual recommendations.                                                                                                     
                                                                                                                                
CHAIR  SEEKINS  announced  that   without  objection,  the  motion                                                              
carried. He then  recessed the meeting at 10:25 a.m.  and said his                                                              
intent was to reconvene after the Senate floor session.                                                                         

Document Name Date/Time Subjects