Legislature(2003 - 2004)

02/18/2003 01:43 PM TRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
         SB  53-REVOKE DRIVER'S LIC. FOR FATAL ACCIDENT                                                                     
                                                                                                                              
SENATOR SCOTT  OGAN, sponsor  of SB  53, explained  he introduced                                                               
similar  legislation  about  four  years ago.    Former  Governor                                                               
Knowles  introduced the  same legislation  two  years ago,  which                                                               
died in  the last moments of  the legislature last year  so he is                                                               
reintroducing the measure.  He explained:                                                                                       
                                                                                                                                
     What motivated  me to do  this was literally  having to                                                                    
     take my knife  and dig the dirt out  from underneath my                                                                    
     fingernails from burying a couple  of my friends' kids.                                                                    
     And two kids  were killed in the same car  wreck.  They                                                                    
     were killed  by a young  man who was  basically charged                                                                    
     with a  traffic violation of  speeding.  The  young man                                                                    
     received a very  light sentence, just a  few points off                                                                    
     his drivers license  and a few hundred  dollar fine and                                                                    
     some community  service.  And  it was the  maximum that                                                                    
     the judge could give  and the judge actually apologized                                                                    
     to the  parents for not being  able to do more.   Since                                                                    
     then he was involved  in another vehicle accident that,                                                                    
     I'm not  sure of  the exact  tickets of  that accident,                                                                    
     but I've been  told that individual was  involved in an                                                                    
     accident that  killed two more  kids and had he  lost a                                                                    
     license maybe that might not have happened.                                                                                
                                                                                                                                
     When  we first  introduced the  bill, six  years ago  I                                                                    
     think it  was, we had  one woman that testified  that a                                                                    
     person ran a red light in  Anchorage, a woman ran a red                                                                    
     light  and killed  her daughter,  she got  a $50  fine.                                                                    
     And I think the families  of these victims of accidents                                                                    
     feel  that  justice  is  not  being  served.    There's                                                                    
     certainly civil  recourse that they could  take to, the                                                                    
     one  family  that  lost the  two  boys,  both  families                                                                    
     decided  not to  litigate in  civil court.   They  just                                                                    
     felt it  wasn't something  they wanted  to do  but they                                                                    
     would  have  liked  to  have had  the  young  man  held                                                                    
     accountable.    There  was another  accident  recently,                                                                    
     earlier  this  winter, where  two  people  died, and  a                                                                    
     young gal was driving, another young person....                                                                            
                                                                                                                                
     Situations   where  there   is   alcohol  involved   or                                                                    
     something   like  that   they  can   be  charged   with                                                                    
     manslaughter or face some criminal  charges.  Right now                                                                    
     the way  our law is  written, you get a  traffic ticket                                                                    
     you get  a slap on  the wrist and  your on to,  back to                                                                    
     your  bad  driving  habits.     So  anyway,  this  bill                                                                    
     attempts to clarify that.                                                                                                  
                                                                                                                                
     There  are  a  lot  of  technical  issues  here,  legal                                                                    
     technical issues,  I think Annie  Carpeneti is  here to                                                                    
     answer questions  if anybody  has some  on those.   But                                                                    
     basically  this  is a  policy  change  that the  Alaska                                                                    
     Legislature is saying: if  you're not paying attention,                                                                    
     you're  talking  on your  cell  phone,  you run  a  red                                                                    
     light,  you  run  a  stop sign,  you  speed,  you  kill                                                                    
     somebody, you know  it's going to be a  little bit more                                                                    
     than  just a  traffic ticket.    I think  the value  of                                                                    
     human  life is  worth  more than  a  traffic ticket  in                                                                    
     those cases.                                                                                                               
                                                                                                                                
MS. NANCY CAMPBELL  informed the committee her son  was killed in                                                               
the accident Senator Ogan spoke about.   A number of lawyers were                                                               
involved  because six  teenagers were  in  the car.   Her  lawyer                                                               
tried  to pursue  a misdemeanor  conviction but  Alaska laws  are                                                               
written with no  ramifications for this type  of accident because                                                               
the  driver was  not  on drugs  or  alcohol.   The  case went  to                                                               
traffic court  and the judge  apologized and said his  hands were                                                               
tied.    Witnesses  to  the  accident  said  the  young  man  was                                                               
speeding, but  because it  was viewed  through a  rearview mirror                                                               
the testimony could not be considered.   This man also almost ran                                                               
into  a couple  and  they  came to  traffic  court  but were  not                                                               
allowed to testify because of the  way the laws are written.  The                                                               
young man was  given 300 hours of community service.   Two months                                                               
later, that young  man was involved in another  accident in which                                                               
two more teenagers  were killed.  She said to  her knowledge this                                                               
young man is still driving.                                                                                                     
                                                                                                                                
MS.  CAMPBELL  and  her  husband  support  SB  53  and  feel  the                                                               
legislation is appropriate.  They  have lobbied to change the law                                                               
in Alaska since 1994.   The local newspaper in Eureka, California                                                               
reported  a  non-fatal accident  involving  two  teenagers.   One                                                               
young man  pulled up  next to  another and shot  him in  the face                                                               
with a  squirt gun.   The accident that followed  involved injury                                                               
but was not  fatal, however the driver's  license was immediately                                                               
revoked and a fine was imposed  by the State of California.  This                                                               
shows that the problem is the way Alaska laws are written.                                                                      
                                                                                                                                
CHAIR COWDERY how Ms. Campbell  would place the responsibility if                                                               
a person  was driving down the  road in a residential  area at 25                                                               
miles per hour and  hit and killed a child who  darted out from a                                                               
driveway on a tricycle.                                                                                                         
                                                                                                                                
MS.  CAMPBELL said  that  is a  different  situation because  the                                                               
child ran out  into the road and the driver  didn't see the child                                                               
coming.                                                                                                                         
                                                                                                                                
TAPE 03-03, SIDE A                                                                                                            
3:18 p.m.                                                                                                                     
                                                                                                                                
SENATOR OGAN explained if the  person in Chair Cowdery's scenario                                                               
didn't violate any  traffic laws he or she would  not be charged.                                                               
That type of case  is a terrible thing but it  is an accident and                                                               
nobody is really at fault.                                                                                                      
                                                                                                                                
SENATOR LINCOLN  said she  thought SB  53 was a  fine bill.   She                                                               
asked  if  the  bill  covers   4-wheelers,  3-wheelers  and  snow                                                               
machines.  She asked how a vehicle is defined.                                                                                  
                                                                                                                                
SENATOR OGAN  said he would like  Annie Carpeneti to back  him up                                                               
on the question but a traffic  law must be violated.  Operating a                                                               
4-wheeler on a highway would be a violation of a traffic law.                                                                   
                                                                                                                                
SENATOR  LINCOLN  said she  was  thinking  of a  situation  where                                                               
somebody in a  village, driving erratically with  a 4-wheeler and                                                               
not  paying attention,  caused a  fatal accident.   She  asked if                                                               
this bill addresses that type of situation.                                                                                     
                                                                                                                                
MS.   ANNE  CARPENETI,   Assistant  Attorney   General,  Criminal                                                               
Division, Department of Law, testified  the department had worked                                                               
with  Senator Ogan  on SB  53.   She  said in  answer to  Senator                                                               
Lincoln's question  it would depend  on the circumstances  but it                                                               
could  very well  apply.   The  bill is  limited;  it requires  a                                                               
citation  for  a  traffic  violation  and  a  conviction  on  the                                                               
citation.   Then  it  requires the  judge to  find  by clear  and                                                               
convincing evidence that the traffic  violation was a significant                                                               
cause of the accident that killed  a person.  The scenario raised                                                               
by Chair Cowdery would not apply at all.                                                                                        
                                                                                                                                
SENATOR LINCOLN  presented an  example that  had occurred  a year                                                               
earlier.   A  young man  was working  on a  new snow  machine and                                                               
could not  get it going.   He put a  tool on the  accelerator and                                                               
the snow machine took off and  ran over and killed an individual.                                                               
She asked if the legislation would apply in that case.                                                                          
                                                                                                                                
MS.  CARPENETI asked  if he  was cited  for a  traffic violation.                                                               
She  said sometimes  people get  killed  in accidents  and it  is                                                               
really  nobody's fault.    She said  SB  53 addresses  incidences                                                               
where a person hasn't acted  in a criminally negligent manner but                                                               
has  violated  a traffic  law.  Senator  Lincoln's example  would                                                               
depend  on the  circumstances in  the situation:  where the  snow                                                               
machine was,  whether it was on  a vehicular way, or  whether the                                                               
young man  was cited  for some  sort of  traffic violation.   She                                                               
said she would need more information.                                                                                           
                                                                                                                                
SENATOR  THERRIAULT said  Ms. Carpeneti  worked  with the  Senate                                                               
Judiciary  Committee last  year on  changes to  this legislation.                                                               
He had  reviewed the  minutes from  last year and  had a  copy of                                                               
that bill.   He noted  Senator Ogan  had said his  starting point                                                               
was the last version of the bill  and it appears to be except for                                                               
the omission  of an additional  section in last year's  bill that                                                               
dealt with the definition of traffic laws.                                                                                      
                                                                                                                                
MS. CARPENETI  pointed out the definition  on page 3, line  7 was                                                               
in the prior iterations of the bill.                                                                                            
                                                                                                                                
SENATOR THERRIAULT  said she was correct.   The form of  the bill                                                               
is just a little bit different.                                                                                                 
                                                                                                                                
SENATOR THERRIAULT  referred to scenarios given  by Chair Cowdery                                                               
that  Ms.  Carpeneti had  said  did  not  apply.   The  Judiciary                                                               
Committee discussed another scenario last year.                                                                                 
                                                                                                                                
     A mother  picks up her  two children, driving  down the                                                                    
     road hits  an icy  spot, hits  a telephone  pole, kills                                                                    
     one of  the children.   There  was some  testimony last                                                                    
     year that the trooper  responding to the accident scene                                                                    
     is going to cite a  cause for the accident, driving too                                                                    
     fast  for the  conditions.   Now  is  that mother  then                                                                    
     going to be  subject to losing her  license where she's                                                                    
     already lost her child?                                                                                                    
                                                                                                                                
MS. CARPENETI answered it would depend.   If the mother was cited                                                               
for driving too  fast for the conditions and  the judge concluded                                                               
that her  behavior was a  significant contributing factor  to the                                                               
death, then losing her license is a possibility.                                                                                
                                                                                                                                
SENATOR THERRIAULT asked if such  a situation would provide for a                                                               
lot of prosecutorial discretion.                                                                                                
                                                                                                                                
MS. CARPENETI  said yes. The  person has  to be convicted  of the                                                               
citation  beyond a  reasonable doubt.  A  person has  a right  to                                                               
court appointed counsel and a  jury trial for the citation itself                                                               
and  then the  judge  would have  to be  convinced  by clear  and                                                               
convincing  evidence  that  the  bad driving  was  a  significant                                                               
contributing factor to the death.   There are several steps along                                                               
the way that  have to be met before the  license would be revoked                                                               
and it  would be for  the judge to  determine.  She  thought that                                                               
was  why  the Senate  Judiciary  Committee  added the  clear  and                                                               
convincing evidence standard  and that it would  be a significant                                                               
factor in causing the death.                                                                                                    
                                                                                                                                
MS. CARPENETI  explained beyond  a reasonable  doubt is  a higher                                                               
standard.  Clear  and convincing is between  preponderance of the                                                               
evidence  and  beyond  a  reasonable  doubt  but  it  is  a  high                                                               
standard.                                                                                                                       
                                                                                                                                
SENATOR  OLSON  said last  year's  bill  included the  reasonable                                                               
doubt standard;  the standard  in this bill  has been  changed to                                                               
clear and convincing evidence.  He  asked her why that change was                                                               
made.                                                                                                                           
                                                                                                                                
MS. CARPENETI  said she  believes the citation  has to  be proven                                                               
beyond  a reasonable  doubt but  said she  could be  mistaken and                                                               
would  check. The  citation must  be proven  beyond a  reasonable                                                               
doubt  and,  after  the  person   is  convicted  of  the  traffic                                                               
violation, the court  must find by clear  and convincing evidence                                                               
that the  bad driving was  the significant factor in  causing the                                                               
death.                                                                                                                          
                                                                                                                                
SENATOR OLSON stated:                                                                                                           
                                                                                                                                
     As you look  at this transgressing driver  that was out                                                                    
     there  causing  all  this   mayhem  and  certainly  the                                                                    
     fatalities  we certainly  empathize  with the  families                                                                    
     that were affected.  And  I think, with all due respect                                                                    
     Senator  Ogan, your  words as  I remember  them on  the                                                                    
     floor were that 'You cannot legislate common sense.'                                                                       
                                                                                                                                
He  asked if  the  driver that  caused the  two  accidents had  a                                                               
driver's license.                                                                                                               
                                                                                                                                
SENATOR OGAN  said he  did not recall  making that  statement and                                                               
added, "But  you probably can't  legislate common sense,  but you                                                               
can punish  bad judgment.   And, you  know we  legislate morality                                                               
all the time.   That's the most  common thing we do."   He stated                                                               
as  an example  that when  someone three  years older  has sexual                                                               
relations with a child who is 15  years and 364 days old, that is                                                               
child molestation but, the next day,  when the child turns 16, it                                                               
is  not.   That  is a  moral  judgment call.    He applauded  the                                                               
Campbells  for not  taking the  driver to  civil court,  but they                                                               
felt justice  was not served.   This legislation would  provide a                                                               
sense  of justice.   The  Campbell's son  and their  friend's son                                                               
died and, because there was nothing  on the books the judge could                                                               
use, a subsequent accident occurred  and two other children died.                                                               
This young man  did not learn his lesson the  first time so there                                                               
has to be some consequences for bad judgment.                                                                                   
                                                                                                                                
SENATOR  OLSON  said  his  heart  goes out  to  the  people  that                                                               
suffered through the tragedy.                                                                                                   
                                                                                                                                
SENATOR  OLSON  referred   to  case  1  from   the  Actual  Cases                                                             
Supporting SB 53 in which a  man driving along Glenn Highway into                                                             
Anchorage  one summer  afternoon  fell asleep  at  the wheel  and                                                               
violated  a traffic  regulation by  driving onto  the bike  path.                                                               
His car  struck and killed a  woman riding her bicycle.   Senator                                                               
Olson said  a fair  number of  the people  even within  this room                                                               
have at sometime  fallen asleep in undue circumstances.   He said                                                               
to  put them  in the  same category  as the  driver talked  about                                                               
earlier is somewhat unfair.                                                                                                     
                                                                                                                                
SENATOR OGAN responded:                                                                                                         
                                                                                                                                
     With  all  due  respect,  through  the  chair,  Senator                                                                    
     Olson, I guess  you would say that it  wouldn't be fair                                                                    
     for those  people to  sue that person.   They  would be                                                                    
     held liable  in civil court  as well.... You  know life                                                                    
     isn't fair.   We make  judgment calls all the  time and                                                                    
     yea,  I've fallen  asleep, or  you  know caught  myself                                                                    
     falling asleep at  the wheel before and I've  been in a                                                                    
     car  with somebody  that falls  asleep with  their eyes                                                                    
     open.                                                                                                                      
                                                                                                                                
He  said he  did  not  think it  was  unreasonable  to have  some                                                               
ramifications.  He  said he told his  kids a car is  a 4 thousand                                                               
pound missile and  do not mess around, driving is  life and death                                                               
stuff.   Unfortunate  things  happen to  good  people, some  good                                                               
people  make  some bad  judgments  that  kill people,  and  those                                                               
people cannot  be brought back.   He  asked if people  should get                                                               
off with a  $50 fine for running  a red light.  He  did not think                                                               
so.                                                                                                                             
                                                                                                                                
MS. CARPENETI  said, in further  response to  Senator Therriault,                                                               
that in  last year's  bill, the  Senate Judiciary  Committee gave                                                               
the  court discretion  to suspend  the  license for  up to  three                                                               
years  under these  limited  circumstances.   Up  to that  point,                                                               
suspension was mandatory for one year.                                                                                          
                                                                                                                                
SENATOR  THERRIAULT asked  if the  current bill  gives the  court                                                               
that discretion.                                                                                                                
                                                                                                                                
MS. CARPENETI answered it does.                                                                                                 
                                                                                                                                
SENATOR THERRIAULT  said he remembered the  discussion last year.                                                               
That discretion  was added to  recognize the person who  is "hot-                                                               
rodding" and acting egregiously.                                                                                                
                                                                                                                                
SENATOR THERRIAULT recounted a discussion  last year on the issue                                                               
of license  revocation. He noted  that the police blotter  in any                                                               
paper  contains DWIs  (driving  while  intoxicated) that  involve                                                               
people driving  with revoked licenses.   He said he did  not know                                                               
if the laws really impact  people's behavior because people drive                                                               
with  suspended licenses  anyway. A  lot of  people drive  to and                                                               
from work without  a license. People have to drive  in this state                                                               
with the extreme temperatures and  distances and no mass transit.                                                               
He asked  if Senator Ogan had  given thought to what  the penalty                                                               
is  when  people  are  caught driving  with  a  revoked  driver's                                                               
license.  He asked what the  impact would be on the Department of                                                               
Law and the public defenders.                                                                                                   
                                                                                                                                
SENATOR OGAN said the bill  gives the judge discretion. He hoped,                                                               
in the case  Senator Olson mentioned where the woman  hit a patch                                                               
of  ice and  killed  a  child, the  judge  would  take that  into                                                               
consideration.  The   bill  allows   for  a  limited   amount  of                                                               
discretion so  that an offender  can go to  work or take  care of                                                               
someone with  a medical condition or  those kinds of things.   He                                                               
said  a  man in  his  neighborhood  got  in an  accident  without                                                               
insurance and lost his license. He  gives this neighbor a ride to                                                               
town, as the closest store is 12 miles away.                                                                                    
                                                                                                                                
SENATOR  THERRIAULT  said  he wanted  to  bring  the  committee's                                                               
attention to  the fact that  the bill  has picked up  very modest                                                               
and indeterminate fiscal notes.                                                                                                 
                                                                                                                                
SENATOR  THERRIAULT moved  SB 53  from committee  with individual                                                               
recommendations  and the  four attached  fiscal  notes.   Without                                                               
objection, the motion carried.                                                                                                  

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