ALCOHOL-RELATED OFFENSES IN TITLE 28 OF THE ALASKA STATUTES

Transcription

1 ALCOHOL-RELATED OFFENSES IN TITLE 28 OF THE ALASKA STATUTES A Reprt t the Alaska State Legislature December 1, 2016 A guide t Alaska s alchl-related driving and mtr-vehicle ffenses, and recmmendatins fr imprvement. The Alaska Criminal Justice Cmmissin

2 Table f Cntents Executive Summary... 1 I. Intrductin & Backgrund... 2 A. Legislative questins related t Title B. Offenses Discussed in this Reprt... 3 C. The Prcess f Creating this Reprt... 4 D. Drinking and Driving in Alaska... 5 II. Respnses t Legislative Questins... 6 A. Is a revisin f the alchl-related ffenses in AS 28 necessary?... 6 B. Shuld bth administrative law revcatin (ALR) and judicial revcatin prcesses be maintained? Findings & Analysis Recmmendatins... 8 C. What is the effectiveness f ignitin interlck devices (IIDs) in reducing the ffenses f driving while under the influence f an alchlic beverage, inhalant r cntrlled substance (DUI) and refusal t submit t a chemical test and reducing recidivism? IID Findings and Analysis IID Recmmendatins D. Sanctins Imprisnment and Prbatin Fines License revcatin perids fr DUI/Refusal ffenders E. Are there effective prgrams that prmte ffender accuntability, emphasize swift and certain, yet measured punishment, reduce recidivism, and maximize the ffender s ability t remain prductive in sciety? Prbatin prgrams Mnitring Wellness/Therapeutic Curts F. Shuld limited licenses be available fr persns charged with r cnvicted f DWI r Refusal while prviding fr public safety? Cnclusin Appendix A: Changes t Title 28 Made by SB 91 Appendix B: Backgrund f Administratin and Judicial License Revcatin Prcesses in Alaska Appendix C: Ignitin Interlck Devices Alaska

3 Executive Summary The Alaska Legislature asked the Alaska Criminal Justice Cmmissin (Cmmissin) t evaluate the alchl-related ffenses in the mtr vehicle statutes (Title 28). In this reprt, the Cmmissin has prvided an extensive verview f these ffenses and made recmmendatins fr imprvement. Three appendices are als attached which explain sme f the Cmmissin s research in mre depth. In brief, the Cmmissin s recmmendatins are: The Alaska Criminal Justice Cmmissin The Alaska State Legislature created the Alaska Criminal Justice Cmmissin in The Cmmissin cnsists f 13 members: A. Revisin f the alchl-related ffenses in AS 28 is necessary. B. License Revcatin B1. Administrative license revcatin (ALR) shuld be maintained. B2. Judicial license revcatin, which ften serves a distinct functin frm administrative license revcatin, shuld als be maintained. C. Ignitin interlck devices (IIDs) C1. The DMV shuld nt require IID use as a predicate fr license reinstatement, unless it is s rdered by a curt. C2. Retain installatin f IID (r cmparable device) as a prerequisite fr apprval f limited licenses during the pendency f a revcatin perid. C3. Add an ptin t permit apprval f limited licenses fr drivers wh are using remte cntinuus alchl mnitring technlgies (such as a Secure Cntinuus Remte Alchl Mnitr (SCRAM) device). D. Sanctins D1. Refusal ffenders shuld als be eligible fr limited licenses, just as DUI ffenders are. D2. Current IID restrictins shuld still apply fr any limited license apprved during a revcatin perid, but IID requirements culd alternatively be satisfied by remte transdermal mnitring r a 24/7 prgram. Gregry P. Raz, Chair, representing the Alaska Native Cmmunity Alexander O. Bryner, designee f the Chief Justice Jhn B. Cghill, Senate, Nn-Vting Wes Keller, Huse, Nn-Vting (until Jan. 2017) Jahna Lindemuth, Attrney General Jeff L. Jessee, Alaska Mental Health Trust Authrity Walt Mnegan, Department f Public Safety Cmmissiner Stephanie Rhades, District Curt Judge Kristie L. Sell, Municipal Law Enfrcement Brenda Stanfill, Victims Rights Advcate Quinlan G. Steiner, Public Defender Trevr N. Stephens, Superir Curt Judge Dean Williams, Department f Crrectins Cmmissiner 1

4 I. Intrductin & Backgrund The Alaska Legislature created the Alaska Criminal Justice Cmmissin (Cmmissin) in 2014 t evaluate state criminal laws and practices and recmmend changes t reduce recidivism and imprve public safety. 1 The bill creating the Cmmissin was knwn as SB 64. Since its creatin, the Cmmissin has frwarded a number f recmmendatins fr changes t state law and plicy. Many f these recmmendatins were included in SB 91, the mnibus criminal law bill that was enacted in July A. Legislative questins related t Title 28 In SB 64, the Alaska Legislature psed six specific questins fr the Cmmissin abut alchlrelated ffenses in Title 28 f the Alaska Statutes. 2 These questins are listed belw. The Cmmissin was t reprt n these questins by July 1, SB 64 Questins Regarding AS 28 Is a revisin f the alchl-related ffenses in AS 28 necessary? Shuld bth administrative law revcatin and judicial revcatin prcesses be maintained? What is the effectiveness f ignitin interlck devices in reducing the ffenses f driving while under the influence f an alchlic beverage, inhalant r cntrlled substance and refusal t submit t a chemical test and reducing recidivism? Shuld the punishments, fines, and assciated driver s license revcatin perids be decreased r increased? Are there effective prgrams that prmte ffender accuntability, emphasize swift and certain, yet measured punishment, reduce recidivism, and maximize the ffender s ability t remain prductive in sciety? Shuld limited licenses be available fr persns charged with r cnvicted f DWI r Refusal while prviding fr public safety? See SB 64, Sectin 37 In SB 91, the Legislature psed additinal questins, directing the Cmmissin t prepare a reprt regarding the effectiveness f the penalties, fines, and refrmative and rehabilitative measures under state law fr the ffenses f driving while intxicated, refusal t submit t a chemical test, and driving withut a valid driver s license. The Legislature asked that the reprt include an pinin n whether the penalties, fines, and refrmative and rehabilitative measures 1 See AS Title 28 cntains Alaska s mtr vehicle laws. Mtr vehicle means a vehicle which is self-prpelled except a vehicle mved by human r animal pwer, thus including snwmachines and all-terrain vehicles which may nt be subject t registratin. AS (17) ( Definitins ). 2

5 under state law fr the ffenses f driving while under the influence, refusal t submit t a chemical test, and driving withut a valid driver s license reduce recidivism, prmte rehabilitatin and prtect the public. 3 Because bth sets f questins psed by the legislature are related and encmpass similar issues, this reprt addresses all f the legislative queries. B. Offenses Discussed in this Reprt In additin t its specific questins abut the crimes listed abve, the Legislature asked the cmmissin t reprt n whether a revisin f the alchl-related ffenses in AS 28 is necessary. The wrd ffense is nt used r defined in Title Hwever, the criminal cde (Title 11) defines ffense t include bth crimes and nn-jailable acts (infractins r vilatins). T be cnsistent with the Title 11 definitin, this reprt discusses bth crimes and infractins. 5 Further, this reprt cvers all DUI ffenses, nt merely thse which are alchl-related. Finally, driving withut a valid peratr s license (DVOL) language and penalties 6 als are evaluated t determine cnsistency with SB 91 s recent changes t the driving with a suspended, revked, r limited license statute. 7 This reprt uses acrnyms t describe the varius alchl-related ffenses in Title 28: Definitin f Offense Operating a vehicle, aircraft r watercraft while under the influence f an alchlic beverage, inhalant, r cntrlled substance Refusal t submit t a chemical test Driving while license canceled, suspended, revked, r in vilatin f a limitatin Operating a cmmercial mtr vehicle while under the influence f an alchlic beverage, inhalant, r cntrlled substance Driving withut a valid peratr s license Shrthand DUI Refusal DWLS OUI DVOL 3 SB 91, Sectin 182. This secnd reprt is due nt later than December 1, AS ( Penalties fr vilatins f law, regulatins, and municipal rdinances ). Nn-jailable acts in Title 28 are called infractins. 5 AS (d). 6 See AS (b), tgether with (a)(2) and (b). 7 Befre passage f SB 91, bth DUI and nn-dui related DWLS penalties were mre serius than DVOL penalties. Althugh bth were misdemeanrs, DWLS carried minimum-mandatry terms f imprisnment and cmmunity wrk hurs (see frmer AS ) but DVOL did nt. DWLS sentences (bth DUI- and nn- DUI-related varieties) came under scrutiny last year during the Cmmissin s Justice Reinvestment prcess. The Cmmissin learned that DWLS sentences were significant drivers f Alaska s incarceratin numbers and csts, and refrms were prpsed. The result was that minimum-mandatry jail terms fr DUI-related DWLS were reduced, and fr the nn-dui DWLS, the misdemeanr classificatin was reduced t an infractin. Yet, DVOL remains a misdemeanr. 3

6 The alchl-related infractins in Title 28 include: Refusal f preliminary breath test, AS ; Minr perating a vehicle after cnsuming alchl, AS ; Minr s refusal t submit t chemical test, AS ; and Minr driving within 24 hurs after being cited fr alchl/pbt ffense, AS The alchl-related crimes in Title 28 are: DUI, AS ; OUI (cmmercial), AS ; Refusal, AS ; Refusal f a preliminary breath test by peratr f cmmercial mtr vehicles (if lawfully arrested and if the fficer has prbable cause fr DUI), AS ; Circumventing r tampering with an IID device, AS (d)3)(B)(ii) and ; and DWLS if the license status was due t a DUI r Refusal cnvictin, AS (a)(1) and (b)(1). 8 C. The Prcess f Creating this Reprt In the summer f 2015 the Cmmissin created a wrking grup t study Title 28. The Title 28 wrking grup met nine times between the summer f 2015 and the spring f Meeting summaries can be accessed here: The wrking grup was cmprised f Cmmissiners and subject-matter experts. Participating cmmissiners included Alex Bryner, Stephanie Rhades, Trevr Stephens, Kris Sell, Greg Raz, and frmer Cmmissiner Gary Flger. The fllwing individuals prvided imprtant infrmatin, analysis, and data fr this reprt: Divisin f Mtr Vehicles staff Jaysn Whiteside, Kirsten Jedlicka, Lauren Edades, Amy Ericksn, Audrey O Brian, and Nicle Tham; attrney Fred Slne; Assistant Public Defender Matt Widmer; Municipality f Anchrage prsecutr Seneca Then; Department f Law representatives Christina Sherman and Kaci Schreder; Partners fr Prgress representatives Billy Huser and Dreen Schenkenberger; Department f Public Safety Lt. David Hansn; Department f Health and Scial Services/ASAP staff Susan Gravely and Alysa Wden; Ralph Andrews, Bristl Bay Native Assciatin; Alaska Curt System General Cunsel Nancy Meade and ACS Therapeutic Curts Crdinatr Michelle Bartley. (Nt all participants attended every meeting.) The wrk grup researched the issues and frmulated recmmendatins fr the Cmmissin s cnsideratin. The Cmmissin cnsidered the wrk grup s ideas at its meeting in Octber f DWLS is an infractin if it was nt related t a DUI r Refusal cnvictin. AS (a)(2) and (3), (b)(2). 4

7 D. Drinking and Driving in Alaska Alaska has a high incidence f alchl use in its ppulatin relative t the United States as a whle. In 2014, 20.2% f Alaskan adults reprted binge drinking, meaning that they had five r mre drinks (men) r fur r mre drinks (wmen) n ne r mre ccasins in the past 30 days. 9.1% engaged in heavy drinking, meaning cnsuming mre than tw alchlic drinks (men) r mre than ne drink (wmen) each day during the past 30 days. 9 Unintentinal injuries, such as thse caused by mtr vehicle accidents, are highly assciated with alchl use. In Alaska, accidents are the third leading cause f death after cancer and heart disease. In 2014, 31.5% f mtr vehicle fatalities in Alaska invlved a driver with a BAC (Breath Alchl Cntent r Cncentratin) f.08 grams per deciliter (g/dl) r higher. 10 The average BAC fr alchl-impaired Alaska drivers invlved in fatal accidents was in 2015, cmpared t natinally. 11 Preliminary data frm 2016 shws that traffic fatalities in Alaska increased 34% in 2016 as cmpared with 2015, thugh the reasns fr this are as yet unknwn. 12 The natinal increase during the same perid was 10.4%. 13 Data frm the Alaska Department f Public Safety shws that DUI/OUI arrests have been declining in Alaska since The average year-ver-year drp between 2008 and 2014 was 15 percent. At the peak in 2008, 5,396 individuals were arrested fr a DUI/OUI; in 2014, 2,395 adults were arrested fr DUI (nt including arrests fr Refusals). Natinally, arrest rates have als declined but at a slwer rate: in 2008, 1,483,396 individuals were arrested fr driving under the influence, while in 2014, 1,117,852 individuals were arrested fr driving under the influence. 14,15 In FY15, the Alaska Curt System reprted a ttal f 3,594 DUI cases dispsed statewide. Felny DUI cnvictins accunted fr 223 f the cases, mst f them (N=166) in the Third Judicial District. The curt system als reprted 3,371 misdemeanr DUI cnvictins in FY15 (1,101 f which were Municipality f Anchrage cases). 9 Alaska Department f Health and Scial Services and Alaska Mental Health Trust Authrity. Alaska Screcard: Key Issues Impacting Alaska Mental Health Trust Beneficiaries (December 2015). 10 Alaska Highway Safety Office. State f Alaska Highway Safety Annual Reprt (2015). 11 NHTSA. (2016). Fatality Analysis Reprting System (FARS) [Database]. Retrieved frm wwwfars.nhtsa.dt.gv/querytl/querysectin/selectyear.aspx. 12 Press Release: Alaska sees 34 percent increase in mtr vehicle traffic fatalities in Alaska Department f Transprtatin and Public Facilities, Nvember 22, Retrieved frm FBI. (n.d.). Table 29 Estimated Number f Arrests, United States, Retrieved frm 15 FBI. (n.d.). Table 29 Estimated Number f Arrests, United States, Retrieved frm 5

8 II. Respnses t Legislative Questins A. Is a revisin f the alchl-related ffenses in AS 28 necessary? Yes; the Cmmissin has identified a number f areas in need f revisin. B. Shuld bth administrative law revcatin (ALR) and judicial revcatin prcesses be maintained? The Cmmissin fund that bth the administrative and judicial revcatin prcesses d verlap in many regards, but ultimately cncluded that each serves an imprtant and distinct functin. It further cncluded that the benefits f keeping bth prcesses utweigh the drawbacks f eliminating ne r the ther. A summary f the Cmmissin s findings and analysis supprting this recmmendatin is set ut belw; detailed infrmatin and analysis is set ut in Appendix B. 1. Findings & Analysis In Alaska, as in many states, the statutry authrity fr pre-cnvictin administrative license revcatin (ALR) by the Divisin f Mtr Vehicles (DMV) is limited t a shrt list f s-called per se ffenses. 16 Mst f the administrative license revcatins are the result f a DUI with an unlawful BAC (ften referred t as a per se DUI ) r Refusal. Administrative revcatin in Alaska ccurs arund seven days after a persn is arrested, unless the persn requests an administrative review befre a DMV hearing fficer. 17 Natinal research shws that pre-cnvictin administrative license revcatin (ALR) fr per se ffenses is effective in reducing DUI recidivism. One majr study cmparing pre-cnvictin with pst-cnvictin license revcatin fund that pre-cnvictin license revcatin was significantly mre effective. 18 This is presumed t be because curt prceedings are prtracted cmpared t administrative license revcatin; curt revcatin can nly fllw cnvictin whereas ALR is impsed sn after the arrest; and cnvictin by a curt requires a higher standard 16 AS , , and See AS (c). If the persn timely requests an administrative review, he is given a limited license t use until the hearing. At the hearing, the inquiry is limited t the issue f whether the law enfrcement fficer had prbable cause t believe the persn was DUI r cmmitted the crime f Refusal. AS (g). 18 DeYung, David. (2011). Traffic Safety Impact f Judicial and Administrative Driver License Suspensin. Cuntermeasures t Address Impaired Driving Offenders Tward an Integrated Mdel, August Retrieved frm 6

9 f prf than ALR. Curt-rdered revcatins impsed lng after the ffending cnduct wuld have a relatively diluted crrectinal effect. Thus, the Cmmissin cncluded that ALR serves a beneficial functin. Having cncluded that ALR serves a beneficial functin, the Cmmissin cnsidered what drawbacks are presented by pre-cnvictin ALR. One criticism is that ALR insufficiently prtects drivers rights. Previusly under Alaska law, drivers wh were acquitted r therwise nt cnvicted were nt well served, because DMV lacked the explicit authrity t reinstate a license upn acquittal r dismissal. Hwever, in July f 2016, SB 91 amended Title 28 t require DMV t rescind any ALR if the parallel criminal case is dismissed fr any reasn r the defendant is acquitted. 19 Mrever, the Alaska Supreme Curt has affirmed that the ALR prcess is lawful and cnstitutinal, thugh the burden f prf fr administrative revcatin is nt as high as in criminal cases. 20 The Cmmissin next cnsidered whether judicial license revcatin culd be discarded if ALR were maintained. Althugh the Cmmissin fund instances in which licenses can be revked by bth the curts and DMV, there are a number f cases in which nly curts have the authrity t revke a license. 21 Fr example: nly curts may revke licenses fr reckless driving r fr DUI ffenses that are nt per se DUI. Als, current law allws curts the ptin f rdering a perid f license revcatin cnsecutive t the mandatry term impsed by DMV fr a DUI r Refusal. 22 A curt-impsed mandatry IID requirement must be met as a cnditin f license reinstatement, while an administrative licensing revcatin rder des nt include an IID requirement fr relicensing. 23 Finally, a therapeutic curt (but nt the DMV) can reduce a fine r the term f a license revcatin based n the defendant s cmpliance with a treatment prgram. 24 With r withut ALR, criminal curt prceedings still will be necessary because license revcatin is but ne f a number f penalties that the curt must impse. Furthermre, the use f tw prcesses is nt much f an additinal burden n state resurces. A curt s license revcatin rders are actually effectuated by DMV. In mst cases, DMV will have its revcatin 19 See SB 91, Sectin 101, effective July ALR determinatins based n a prepnderance f evidence have universally survived cnstitutinal challenges because: a license is cnsidered a privilege and nt a right, administrative prceedings d prvide prcedural and cnstitutinal prtectins t the driver, especially in Alaska, and revcatin can be cnstitutinally justified by the impacts f drunk driving n public safety. In Alaska the same prcedural safeguards apply in civil driver's license revcatin prceedings fr driving while intxicated as apply in criminal prsecutins fr that ffense. Hartman v. State f Alaska, 152 P.3d 1118 (Alaska 2007). 21 See AS Bth curt and DMV-apprved limited licenses d require IID installatin. 24 See SB 91, Sectin 101, effective July

10 already in effect. The curt system des expend resurces ntifying the DMV f a revcatin rder, but electrnic transmissins culd minimize that burden. Fr these reasns, the Cmmissin cncluded that there are gd reasns t maintain bth judicial license revcatin and ALR. Keeping bth prcedures may in sme cases be redundant, but n the whle it is nt wasteful, and eliminating ne r the ther wuld have significant drawbacks. The Cmmissin als cnsidered extending ALR t all ffenses under Title 28 fr which mandatry judicial license revcatin is required. 25 One identified benefit f ding s is that it wuld create an immediate cnsequence fr all vehicular ffenders, sme f whm may have engaged in dangerus activity with a vehicle and may have access t a vehicle pre-trial. Ultimately, hwever, sme members f the Cmmissin were cncerned that this culd have the unintended cnsequence f creating mre administrative review hearings that wuld essentially turn int mini-trials n the underlying charge. The Cmmissin may revisit this tpic in the future. 2. Recmmendatins B1. ALR shuld be maintained. Reasning: Maintaining bth the ALR and judicial revcatin systems is effective and cmprehensive. B2. Eliminatin f curts authrity t impse mandatry license revcatin is nt recmmended. Reasning: There are situatins in which judicial authrity extends beynd that f ALR and therefre serves a separate purpse. Nte: The abve sectin discusses the Cmmissin s findings and recmmendatins n the revcatin prcess in general. Sectin D belw discusses the Cmmissin s findings regarding the length f license revcatin perids. 25 See AS ; the ffenses listed in this statute are: 1)manslaughter r negligent hmicide resulting frm driving a mtr vehicle; 2) a felny in the cmmissin f which a mtr vehicle is used; 3) failure t stp and give aid as required by law when a mtr vehicle accident results in the death r persnal injury f anther; 4) perjury r making a false affidavit r statement under ath t the department under a law relating t mtr vehicles; 5) perating a mtr vehicle r aircraft while under the influence f an alchlic beverage, inhalant, r cntrlled substance; 6) reckless driving; 7) using a mtr vehicle in unlawful flight t avid arrest by a peace fficer; 8) refusal t submit t a chemical test authrized under AS (a) r AS (a) while under arrest fr perating a mtr vehicle, cmmercial mtr vehicle, r aircraft while under the influence f an alchlic beverage, inhalant, r cntrlled substance, r authrized under AS (g); 9) driving while license, privilege t drive, r privilege t btain a license, canceled, suspended, r revked, r in vilatin f a limitatin; 10) vehicle theft in the first degree in vilatin f AS r vehicle theft in the secnd degree in vilatin f AS

11 C. What is the effectiveness f ignitin interlck devices (IIDs) in reducing the ffenses f driving while under the influence f an alchlic beverage, inhalant r cntrlled substance (DUI) and refusal t submit t a chemical test and reducing recidivism? The Cmmissin fund evidence that IIDs effectively reduce recidivism during times that they are being actively and prperly used; hwever, this effect des nt cntinue after the IID is remved. Based n this and ther infrmatin, the Cmmissin recmmends that the Legislature amend the IID requirement. What is an ignitin interlck device? An IID disables a car frm peratin by an intxicated persn by analyzing the alchl cntent f the driver s breath. In Alaska, drivers required t use an IID pay a private vendr t install, calibrate and service the device. The Alaska Department f Crrectins determines which interlck devices are certified fr use in Alaska, and apprved vendrs are listed n the DOC web site. The Cmmissin has cmpiled extensive infrmatin abut ignitin interlcks, the research cncerning their effectiveness, and law and practice in Alaska. This infrmatin is attached as Appendix C. The fllwing findings, analysis, and recmmendatins are based n that infrmatin. 1. IID Findings and Analysis Use f IIDs in Alaska. Since 2008, any persn cnvicted f DUI r Refusal whse ffense invlved the use f alchl is rdered t use an ignitin interlck device fr a perid f time after he r she regains the privilege t drive. 26 A persn regains the privilege t drive after a statutry revcatin perid ends and the persn satisfies varius ther re-licensing requirements. 27 The amunt f time a cnvicted ffender is required t use the IID varies frm six mnths t 60 mnths, depending n whether the cnvictin was a misdemeanr r a felny, and in sme cases n the timing f the persn s prir cnvictins. The IID requirement never expires, meaning a persn s license cannt be reinstated until he r she shws prf f IID installatin t the DMV. 26 AS (b)(1); AS (n)(1); AS (g)(1); AS (p)(1). The curt may nt suspend the IID requirement. AS (b)(2); AS (n)(2); AS (g)(2); AS (p)(2). Between 1989 and 2008, curts had discretin t require IID use in DUI/Refusal cases. 27 Fr example, cmpletin f treatment requirements; passing written, visin and rad tests; payment f DMV fees. 9

12 IIDs als are required when a persn whse license has been revked requests a limited license. A limited license enables a persn t earn a livelihd while nt unduly endangering the public. Limited licenses are nly available fr ffenders wh are emplyed and enrlled in a treatment prgram. 28 Limited licenses can be requested during the perid f a license revcatin by certain DUI (but nt Refusal) ffenders. 29 First-time ffenders may apply fr a limited license t drive fllwing 30 days f license revcatin. 30 Secnd-time r higher (nn-felny) ffenders may apply fr a limited license t drive fllwing 90 days f license revcatin. 31 Any limited license request must be apprved by a curt r the DMV. If the request fr the limited license is apprved, the driver will be required t install an IID and shw prf f installatin (amng ther things). Alaska law cntains exemptins frm the mandatry IID requirement. These include exemptins fr driving an emplyer s vehicle if apprved in advance by a curt, and fr ffenders in certain rural cmmunities (due t the State s large land area and dispersed ppulatin, ffenders are nt required t use an ignitin interlck device if they perate a mtr vehicle in certain cmmunities, namely, cmmunities in which car registratin/insurance is nt required. 32,33 ) Additinally, curts d nt have t rder an IID fr an ffender whse DUI impairment was drugrelated. 34 The Cmmissin examined the cst f IIDs. Fr a first-dui ffender, basic interlck fees are abut $700 fr the perid f six mnths. All interlck-related csts which include installatin, remval, mnthly servicing, ptinal insurance t cver the unit, and any vendr charges fr IID re-start after an alchl lck-ut als are paid by the ffender t the third-party vendr. A firsttime ffender als wuld incur additinal csts (fines, surcharges, DMV fees, electrnic mnitring, public cunsel fee) between $2,000-2,680, and pssibly impundment fees, frfeiture-related lsses, and ASAP csts. At the pint the persn regains the privilege t drive, there als wuld be csts fr SR-22 insurance (estimated at $300/mnth). Thus, the direct and indirect csts f the DUI cnvictin, even fr a first ffender, are significant. 28 Limitatin f driver's license, Alaska Stat Limited licenses cannt be issued until a n-drive perid is first bserved. The length f the n-drive perid (ften called the hard revcatin) depends n the number f prir DUI/Refusal cnvictins. 30 Limitatin f driver's license, Alaska Stat Limitatin f driver's license, Alaska Stat Mtr vehicle liability insurance required; exemptins, Alaska Stat Alaska Curt System. (2015). Ignitin Interlck Device Infrmatin Sheet (CR-483). Retrieved frm 34 A curt may impse an IID requirement as a cnditin f prbatin when the impairment was nt alchl-related. 10

13 A sentencing curt can include IID csts as part f the fine. 35 If the curt allws that ptin, the defendant submits receipts fr the IID payments t the curt by a deadline specified in the judgment, and the curt applies the credit t the amunt f the fine. Unfrtunately, it is unknwn hw many Alaskans have been rdered t install an IID. 36 Infrmatin frm the DMV suggests that ver 12,000 Alaskans currently have an IID restrictin n their licenses (see discussin belw). One researcher wh estimates interlck installatin rates fr all states has estimated that there are 1,922 presently installed devices in Alaska. 37 That number culd be cmpared t 3,594 cnvictins fr DUI r Refusal in Alaska in FY2015 alne. Strengths and Weaknesses f IIDs. The Cmmissin examined the effects f IIDs in the fllwing areas: effects n recidivism, effects n public safety, ffenders cmpliance with IID rders, and effects n re-licensing. Each f these areas is discussed briefly belw. Effects n recidivism. Interlcks are an effective methd fr preventing alchl-impaired driving while they are installed. 38 A systematic review f fifteen scientific studies cnducted by the Centers fr Disease Cntrl and Preventin fund that, while interlcks were installed, the re-arrest rate f ffenders decreased by 67%, cmpared t grups that did nt have the device installed. 39 Thus, the benefit f the IID requirement in Alaska may be reduced recidivism fr ffenders wh install and drive with the devices, during the perid that they are installed. There is insufficient evidence t shw that interlck devices deter future behavir when they are n lnger in use. With ne ntable exceptin, studies have generally shwn that after ignitin interlcks were remved, any recidivism reductin effect disappeared, and interlck and cmparisn drivers had similar recidivism rates thereafter. 40 Effects n public safety. IID use des nt seem t have a psitive effect n the rate f mtr vehicle accidents. Evidence frm ther states suggests that ffenders with installed ignitin interlck devices tend t have mre vehicle accidents than persns with suspended licenses, but 35 AS (d). 36 The curt system des nt track the number f individuals cnvicted f alchl-invlved ffenses wh were rdered t have an interlck installed. 37 Rth, Richard. (2013) Survey f Currently-Installed Interlcks in the U.S. Retrieved frm 38 See discussin in Appendix C at page See discussin in Appendix C at page See discussin in Appendix C at page 3. There is prmising evidence elsewhere that recidivism may be reduced when IID use is cupled with treatment and cnsistently and clsely mnitred with immediate feedback and cnsequence fr nn-cmpliance; hwever, Alaska s IID requirement is nt cupled with treatment and ffenders wh d nt cmply are nt mnitred. 11

14 abut the same number f vehicle accidents as the general public. 41,42 It is unknwn if this situatin exists in Alaska. Cmpliance with IID rders. The Cmmissin has cncluded that relatively few ffenders wh are rdered t install an IID actually d s. In Alaska, n ne entity tracks the number f persns wh have failed t install r cmply with interlck requirements, 43 but accrding t a 2012 study f the Alaska ignitin interlck prgram, a majrity f eligible ffenders either fail t have the interlck rdered by the curts r fail t install the device even if they receive a judicial rder t d s. 44 This estimate is cnsistent with infrmatin frm the Alaska DMV that there are 12,784 living drivers with an unsatisfied interlck restrictin n their license. (A license wuld be flagged with an unsatisfied interlck restrictin when the driver s license was revked and put under an IID restrictin.) In ther wrds, 12,784 living Alaskans are currently freclsed frm license reinstatement due t an utstanding interlck requirement. While sme f these 12,784 drivers may be driving n a DMV-issued interlck-restricted license, many (if nt mst) are nt. The Cmmissin als learned that there is n frmal versight f thse wh d have IIDs installed. IID prgram participants are required t submit their device fr inspectin and recalibratin every 90 days t the third-party IID vender, but there is n system in place t mnitr this data r t track lckuts. Additinally, ffenders wh d install the devices may tamper with them r evade using them. Cmmissin members heard anecdtal stries f ffenders wh install a device n a car which they then park while they drive a different car. Effects n re-licensing. The mandatry IID requirement as it is used in Alaska may have discuraged many ffenders frm re-licensing. Because the IID predicate fr license reinstatement never expires, an ffender cannt re-license withut shwing prf f IID installatin t the DMV. Offenders wh d nt re-license remain utside f the driver-cntrl system, making crrective actin difficult if their driving cntinues t be a prblem See discussin in Appendix C at page See discussin in Appendix C at page The curts d nt track what number f individuals cnvicted f alchl-invlved ffenses were rdered t have an interlck installed, and DMV des nt knw hw many recrds nce had an interlckrestrictin, since it did nt keep track f thse recrds nce the requirement was fully satisfied. 44 Traffic Injury Research Fundatin. (2012). Alchl Interlck Prgram Technical Assistance and Training: Alaska. Ottawa, Ontari: Traffic Injury Research Fundatin. 45 The Traffic Injury Research Fundatin has nted Between 25% and 75% f ffenders wh have a driver s license that is suspended r revked cntinue t drive, making it likely that they will cntinue t drink and drive and be a danger n the radways. McCartt et al., 2003; Rss and Gnzales, 1988; Griffing III and De La Zerda,

15 The Cmmissin estimates that as many as 60% f Alaska ffenders may nt be reinstating their driving privileges. 46 Based n the large number f Alaska driver recrds (12,784 living persns) shwing unsatisfied interlck restrictins, researchers estimates f installed interlcks, estimates f the percentage f Alaskan drivers wh failed t reinstate licenses after revcatin, 47 and the experience f ther states, 48 the Cmmissin assumes that the mandatry predicate f an IID fr license reinstatement discurages many individuals frm license reinstatement even after the end f a revcatin perid. 49 Based n the abve infrmatin, the Cmmissin cncludes: The existing statutry scheme f mandated IID use des nt effectively prtect public safety because: Attempts t perate a vehicle that results in a lck-ut are nt remtely mnitred, prmptly dcumented r actively reprted t an versight agency by an IID vendr; The IID des nt mnitr a driver when he r she is nt driving the vehicle n which the device is installed. This cntrasts with ther remte mnitring technlgies which cntinuusly mnitr in real-time, r allw fr a near-immediate respnse. The penalty and license reinstatement criteria are applied incnsistently: IID participatin is nt required in sme rural Alaskan cmmunities; als, IID participatin is nt required fr drivers whse DUI ccurred n certain federal lands and federal reservatins; IID use cannt be rdered as a re-licensing requirement when the license revcatin fr DUI/Refusal was nly administrative (ALR) and nt judicial; 46 Alaska DMV: 1312 (the number f drivers wh reinstated their licenses fllwing an ignitin interlck device requirement in 2014) divided by 3276 (the number f DMV administrative revcatins resulting frm a DUI in 2013). 47 See discussin in Appendix A at pages Natinally, the prprtin f cnvicted ffenders wh d install interlcks is lw. Acrss the 28 states whse ignitin interlck prgram were surveyed by NHTSA, the rati f interlcks in use t DWI arrests in 2010 ranged frm 3 percent t 73 percent with the median State at 17 percent. Casanva-Pwell, T., Hedlund, J., Leaf, W., & Tisn, J. (2015, May). Evaluatin f State ignitin interlck prgrams: Interlck use analyses frm 28 States, (Reprt N. DOT HS ). Washingtn, DC: Natinal Highway Traffic Safety Administratin, & Atlanta: Centers fr Disease Cntrl and Preventin. Retrieved frm 49 There is n financial assistance prgram in Alaska fr indigent drivers t regain their license. Althugh curt fines may be ffset by dcumented csts fr IID installatin and service, there is n assistance fr the csts f curt-rdered treatment, als anther predicate fr license reinstatement. 13

16 DMV lacks statutry authrity t require IID use fr reinstatement after an ALR fr DUI (except as a cnditin fr a limited license during the term f revcatin); IID is nt mandatry fr drug-invlved DUIs (as the device has n capacity t register drug use r impairment), and the number f drug-invlved DUIs is increasing. The IID requirement burdens the way back t lawful licensed and insured driving fr sme Alaskans: Drivers wh d nt wn a car still must shw that an IID has been installed n sme car in rder t be re-licensed. IIDs are expensive (fr a first DUI ffender the cst is between $ , and fr a secnd DUI the cst is $ ), and n financial aid is available fr indigent ffenders. Fr all these reasns, the Cmmissin has cncluded that the existing IID prcess is flawed. The Cmmissin cnsidered a recmmendatin t eliminate IID installatin as a mandatry sentence cmpnent r cnditin f prbatin, leaving it up t the discretin f judges. Ultimately, hwever, the Cmmissin was nt cmfrtable making this change; there was interest in refrming the prcess t ensure that it wuld plice the persn, nt the car. The Cmmissin may revisit this tpic and make further recmmendatins in the future. The Cmmissin als cnsidered recmmending that judges be given the discretin t set IID installatin as a cnditin f bail in DUI cases, but sme expressed cncern that this may lead t verprgramming fr lw-level ffenders. The Cmmissin may revisit this tpic as well. 2. IID Recmmendatins Based n the abve findings and analysis, the Cmmissin makes the fllwing recmmendatins regarding interlck ignitin devices: C1. Prvided the full term f license revcatin has been cmpleted and the persn is therwise fully eligible fr reinstatement, DMV shuld nt require IID use as a predicate fr license reinstatement unless it has been rdered by the curt. Reasning: Sme ffenders may chse nt t apply fr a limited license during the revcatin perid; nce they have cmpleted that perid they are nt required t apply fr a limited license and therefre shuld nt be required t have an IID installed unless a curt s rders. 14

17 C2. Retain installatin f an IID (r a cmparable device) as a prerequisite fr apprval f limited licenses during the pendency f a revcatin perid. Reasning: IIDs are effective in reducing recidivism while prperly installed and in use, and the subset f drivers wh apply fr limited licenses during the perid f revcatin may be mre likely t cmply than ther cnvicted ffenders. C3. Add an ptin t permit apprval f limited licenses fr drivers wh are using remte cntinuus alchl mnitring technlgies (such as a Secure Cntinuus Remte Alchl Mnitr (SCRAM) device). 50 Reasning: Because SCRAM devices mnitr the persn s alchl cnsumptin at all times, the persn will be less able t evade detectin than drivers rdered t use IIDs (wh may be able t drive a different car withut an IID installed). D. Sanctins The Legislature asked the Cmmissin t answer the fllwing questins regarding sanctins in Title 28: Shuld the punishments, fines and assciated driver s license revcatin perids (fr all Title 28 ffenses) be maintained? What is the effectiveness f the penalties, fines, and refrmative and rehabilitative measures under state law fr the ffenses f driving while intxicated, refusal t submit t a chemical test, and driving withut a valid driver s license? D the penalties, fines, and refrmative and rehabilitative measures under state law fr the ffenses f driving while under the influence, refusal t submit t a chemical test, and driving withut a valid driver s license reduce recidivism, prmte rehabilitatin and prtect the public? Generally speaking, Title 28 ffenses are punishable by imprisnment, prbatin, fines and license revcatins. 51 The next sectins will discuss each type f sanctin in turn, with recmmendatins fllwing each discussin. Fr histrical reference, Appendix A cntains a summary f changes t Title 28 enacted in SB A SCRAM device is an ankle bracelet that prvides cntinuus alchl mnitring via transdermal alchl testing. 51 Infractins are punishable nly by a fine r ther lw-level sanctins that d nt suggest criminality r invlve lss f a valuable license because infractins d nt give rise t cnstitutinal prtectins f jury trial r indigent representatin. Title 28 infractins include DWLS nt arising frm a DUI cnvictin, the refusal f a preliminary breath test; minr perating a vehicle after cnsuming alchl; a minr s refusal t submit t a chemical test; and a minr s driving within 24 hurs after being cited fr an alchl/pbt ffense. 15

18 1. Imprisnment and Prbatin The fllwing is an verview f imprisnment and prbatinary terms fr Title 28 ffenses including recent changes t the law in this area fllwing the enactment f SB 91. A first cnvictin fr either DUI r Refusal is a Class A misdemeanr. Generally, first-time cnvictins fr Class A misdemeanrs carry a sentence f up t 30 days, with n mandatry minimum, and the maximum fine is $25,000 (with n minimum). 52 Hwever, DUI and Refusal have mre specific prvisins, requiring a mandatry minimum term f imprisnment f 72 hurs fr the first cnvictin. (Thugh this is the same minimum term as befre SB 91, ffenders will nw serve this term n electrnic mnitring. 53 ) A first-time DUI r Refusal cnvictin als carries a mandatry minimum license revcatin f 90 days, and a mandatry minimum fine f $1, The secnd ffense, als a Class A misdemeanr, carries a mandatry minimum term f imprisnment f 20 days, a mandatry minimum license revcatin f 12 mnths, and a mandatry minimum fine f $3, A third cnvictin fr either ffense generally qualifies as a felny. 56 Fr a first-time DUI ffender, 27 states require n minimum mandatry sentence. Of the remainder, 14 states have sentences f 1-2 days, 3 states (including Alaska) have 3-day sentences, Nebraska has a 7-day minimum and Arizna has 10. (Many states d require higher minimum sentences than Alaska s if a first ffender has a high BAC.) Fr a secnd DUI ffender, minimummandatry sentences amng the states range frm days. The median is 7 days. Alaska s minimum mandatry sentence fr a secnd ffender is 20 days. In additin t terms f imprisnment, mst sentences will als carry terms f prbatin. Under SB 91, maximum prbatin terms were reduced frm 10 years t 1 year fr a first misdemeanr ffense. 57 In cases f DUI r Refusal, a secnd r subsequent misdemeanr will carry a maximum 2 years f prbatin See SB 91, Sectins 72 & See SB 91, Sectins 107 & 110. In cmmunities where EM is nt available, sentences may be served in private residences by any ther means apprved by the cmmissiner f crrectins. 54 AS (b)(1); AS (g)(1); AS (c)(1). 55 See AS (b)(1); AS (g)(1); AS (c)(2). 56 See AS (n); AS (p). 57 See SB 91, Sectin

19 Minimum mandatry applicable terms fr misdemeanr DUI/OUI/Refusal # DUI/OUI/ Refusal Minimum Jail Term Maximum Jail Term Maximum Prbatin term 1 st 72 hurs 1 year 1 year 2 nd 20 days 1 year 2 years 3 rd within 15 years 60 days 1 year 2 years 4 rd within 15 years 120 days 1 year 2 years 5 th within 15 years 240 days 1 year 2 years 6 th within 15 years 360 days 1 year 2 years DUI and Refusal are als felny ffenses, if the ffense is the third such ffense fr the driver within the past 10 years. 59,60 Felny DUI and Felny Refusal are Class C felnies with sentence ranges that increase fr each subsequent ffense (see table belw). 61 As Class C felnies, these ffenses are subject t a maximum jail term f 5 years, and a maximum prbatin term f 5 years. 62 Applicable terms fr Felny DUI/OUI/Refusal # DUI/OUI/Refusal Sentencing Range Maximum Jail Term Maximum Prbatin Term 3 rd within 10 years days 5 years 5 years 4 th within 10 years days 5 years 5 years 5 th within 10 years 360 days 2 years 5 years 5 years DWLS (driving with a canceled, suspended, revked r limited license) is als a class A misdemeanr but nly if the license actin related t a DUI/Refusal cnvictin. 63 Under SB 91, a first ffense nw warrants a mandatry ten-day suspended sentence, and a secnd ffense requires a ten-day minimum sentence. As with ther misdemeanr ffenses, the maximum prbatin term (previusly ten years) is nw ne year. Prir t SB 91 s enactment, this ffense required a minimum 20 day/10 day suspended sentence fr the first ffense and 30 days fr a secnd ffense AS (n) 60 AS (p) 61 SB 91, Sectin AS (e); SB 91 Sectin AS (a); SB 91 Sectins 104 & Frmer AS

20 A maximum sentence f ne year is available fr the class A misdemeanr f circumventing r tampering with an IID device, see AS (d)3)(B)(ii). N mandatry minimum applies. As with ther misdemeanr ffenses, the maximum prbatin term is ne year. A maximum jail term f 90 days applies t the class B misdemeanr crimes f (Cmmercial Operatr s) Refusal t Submit t a Preliminary Breath Test. The 90-day maximum term als applies t DVOL 65 (driving withut a valid peratr s license). 66 These maximum terms are in cntrast t the 10-day maximum jail term fr mst ther class B misdemeanrs. 67 N mandatry minimums apply t these ffenses. As with ther misdemeanr ffenses, the maximum prbatin term is ne year. Thugh the classificatin and maximum term fr a nn-dui-related DVOL remains the same, nn-dui-related DWLS has been reduced t an infractin punishable by a maximum fine f $ In summary, SB 91 made the fllwing changes t Title 28 ffenses and assciated jail and prbatinary terms: DWLS ffenses nt based n DUI r Refusal are nw nn-jailable infractins. First-time DWLS based n DUI r Refusal nw carries a 10-day suspended term; secnd-time DWLS based n DUI r Refusal nw carries a 10-day minimum. First-time DUI r Refusal misdemeanrs carry the same sentence, but the sentence will be served n electrnic mnitring. Prbatin fr a first-time DUI r Refusal misdemeanr is 1 year; prbatin fr a secnd r subsequent DUI r Refusal misdemeanr is 2 years; prbatin fr a felny is 5 years. Otherwise, the jail terms that apply nly t Title 28 ffenses have been left unchanged. The Cmmissin s past research n the recidivism effects f jail n DUI ffenders shws that jail sentences fr first ffenders were assciated with higher recidivism rates than bth prbatin and cmmunity wrk service, 69 even when cntrlling fr sci-ecnmic differences between 65 A maximum jail term f 90 days applies t DVOL (driving withut a valid peratr s license). AS (b) is read tgether with (a)(2) and (b) t establish this vilatin and its penalties. DVOL is a misdemeanr, punishable by a maximum 90 days in jail, a $500 fine and a ptential license revcatin 66 AS See AS (b). 68 SB 91 Sectins 104 & Michael Bachmann and Ashfrd L. Dixn DWI Sentencing in the United States: Tward Prmising Punishment Alternatives in Texas. Internatinal Jurnal f Criminal Justice Sciences 9. 18

21 ffender grups. This finding is als cnsistent fr ffenders with multiple prir DUI cnvictins. 70 N matter hw many past cnvictins, sanctins invlving jail were assciated with the highest recidivism rates. The available evidence is that as a specific deterrent, jail terms are extremely cstly and n mre effective in reducing DUI recidivism amng either first time r repeat ffenders than are ther sanctins. 71 Thugh the research wuld supprt reducing jail terms fr DUI and related ffenses, the changes listed abve already represent a sizable shift in appraching Title 28 sanctins. Therefre, the Cmmissin is f the pinin that n additinal changes shuld be recmmended at this time fr the ffenses f DUI/OUI/Refusal, DWLS based n a DUI revcatin, circumventing r tampering with an IID device, r refusal f a PBT by a cmmercial peratr. Rather, the Cmmissin will first evaluate the impact f the changes resulting frm SB 91 s enactment and recmmend further changes in the future if necessary. 2. Fines The Cmmissin has cmpiled data n all applicable fees as a result f a Title 28 cnvictin in the table belw. The table des nt include any lsses due t pssible frfeiture actins r municipal impundment fees, nr the separate, additinal csts fr license reinstatement. Misdemeanr DUI/OUI/Refusal 1 st 2 nd 3 rd 4 th 5 th 6 th Minimum mandatry fine $1,500 $3,000 $4,000 $5,000 $6,000 $7,000 General fund surcharge based n cnvictin 72 $75 r $50 if municipal Crrectinal facility surcharge if brught t a jail fr arrest r $75 service f sentence 73 Jail $330 Cst f imprisnment 74 r EM fr EM sentence $36/$78 $1,467 $2,000 Cst f appinted cunsel 75 Plea $200; trial $500; pst-cnvictin $250 ASAP cst $ David J. DeYung An evaluatin f the effectiveness f alchl treatment, driver license actins and jail terms in reducing drunk driving recidivism in Califrnia. Addictin A Guide t Sentencing DWI Offenders (2005), NHTSA Guide t Sentencing DWI Offenders 2005 HS , citing multiple studies. 72 AS (a)-(d)( Surcharge ). 73 AS ( Crrectinal Facility Surcharge ) Applies if persn was (1) was arrested and taken t a crrectinal facility, regardless f whether the defendant was released r admitted t the facility; r (2) is sentenced t serve a term f imprisnment. 74 AS (l) and 22 AAC (e). 75 Rules f Criminal Prcedure, Rule 39(d) Schedule f Csts. 19

22 Felny DUI/Refusal Minimum mandatry fine $10,000 General fund surcharge based n cnvictin 76 $100 Crrectinal facility surcharge if brught t a jail fr arrest r service f sentence 77 $100 Cst f imprisnment 78 r EM fr sentence $2000 Cst f appinted cunsel Plea $250-$1000, Trial $1,500 Pst-cnvictin $250 As nted abve, the maximum fine fr any A misdemeanr is $25,000, while the maximum fine fr any C felny is $50, DVOL als carries a fine f $500. DWLS, as revised by SB 91, carries n minimum fine, thugh the misdemeanr-level DWLS carries a maximum fine f $25,000. At $1500, Alaska has the single highest minimum mandatry fine fr a first DUI ffense, 4.7 times the natinal average. A survey f all 50 states and the District f Clumbia by WalletHub prvides a median f $250 and a mean f $317 fr states minimum-mandatry fines fr a firsttime DUI. Thirteen states require n minimum fine. 80 At $3000, Alaska als has the highest mandatry fine amng all states and D.C. fr a secnd-dui ffense, 4.5 times the natinal average. Amng all fifty states and D.C., there is a $500 median and a mean f $667. WalletHub als states that, after a DUI in Alaska, there is an average 80% increase in car insurance rates, which is the furth-highest reprted increase in the cuntry. 76 AS (a)-(d)( Surcharge ). 77 AS ( Crrectinal Facility Surcharge ) Applies if persn was (1) was arrested and taken t a crrectinal facility, regardless f whether the defendant was released r admitted t the facility; r (2) is sentenced t serve a term f imprisnment. 78 AS (l) and 22 AAC (e). 79 SB 91, Sectin There are als sharp cntrasts within ur wn state brders. Fr DUI cases prsecuted in federal curt under the Assimilative Crimes Act (in the Natinal Parks), n minimum fine is required. There is a maximum $5000 fine, but it is mre typical fr a fine f $150 t be impsed. 20