HB0379a -1- HB 379
New Text Underlined [DELETED TEXT BRACKETED]
33-LS1213\A
HOUSE BILL NO. 379
IN THE LEGISLATURE OF THE STATE OF ALASKA
THIRTY-THIRD LEGISLATURE - SECOND SESSION
BY REPRESENTATIVE PRAX
Introduced: 2/20/24
Referred: State Affairs, Judiciary
A BILL
FOR AN ACT ENTITLED
"An Act establishing the driving while under the influence diversion program for 1
eligible persons charged with driving while under the influence; relating to judgment for 2
restitution; relating to suspended imposition of sentence; relating to records kept by the 3
Department of Administration; relating to operating a vehicle, aircraft, or watercraft 4
while under the influence of an alcoholic beverage, inhalant, or controlled substance; 5
amending Rule 9, Alaska Rules of Administration, and Rule 39, Alaska Rules of 6
Criminal Procedure; and providing for an effective date." 7
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 8
* Section 1. AS 04.16.160(a) is amended to read: 9
(a) Except as otherwise provided by law, a person who is 21 years of age or 10
older may not purchase alcoholic beverages if the person has been ordered to refrain 11
from consuming alcoholic beverages under AS 12.55.015(a)(13) or as part of a 12
sentence for conviction of a crime under AS 28.35.030, 28.35.032, or a similar 13 33-LS1213\A
HB 379 -2- HB0379a
New Text Underlined [DELETED TEXT BRACKETED]
municipal ordinance, as part of the driving while under the influence diversion 1
program under AS 28.35.043, as a condition of probation or parole from a conviction 2
under AS 28.35.030, 28.35.032, or a similar municipal ordinance, or as a condition of 3
probation or parole for any other crime. The restriction on purchasing alcoholic 4
beverages applies during the period that the person is required to refrain from 5
consuming alcoholic beverages under the sentence or condition of probation or parole. 6
* Sec. 2. AS 09.38.500(8) is amended to read: 7
(8) "judgment of restitution" 8
(A) includes restitution ordered 9
(i) under AS 47.12.120 that is considered as a civil 10
judgment enforceable by execution under AS 47.12.170; [AND] 11
(ii) as part of a sentence under AS 12.55.025(f) that is 12
considered as a judgment for money entered in a civil action; and 13
(iii) as part of the diversion agreement under 14
AS 28.35.043; 15
(B) does not include a judgment for 16
(i) civil damages for torts under state law; or 17
(ii) restitution as a result of a violation of state law that 18
is not a felony or misdemeanor; 19
* Sec. 3. AS 12.55.039(b) is amended to read: 20
(b) A court may not fail to impose the surcharge required under this section. 21
The surcharge may not be waived, deferred, or suspended, unless the defendant is a 22
participant in the driving while under the influence diversion program under 23
AS 28.35.043. A court may allow a defendant who is unable to pay the surcharge 24
required to be imposed under this section to perform community work under 25
AS 12.55.055(c) in lieu of the surcharge. 26
* Sec. 4. AS 12.55.085(a) is amended to read: 27
(a) Except as provided in AS 28.35.043 or (f) of this section, if it appears that 28
there are circumstances in mitigation of the punishment, or that the ends of justice will 29
be served, the court may, in its discretion, suspend the imposition of sentence and may 30
direct that the suspension continue for a period of time, not exceeding the maximum 31 33-LS1213\A
HB0379a -3- HB 379
New Text Underlined [DELETED TEXT BRACKETED]
term of sentence that may be imposed or a period of one year, whichever is greater, 1
and upon the terms and conditions that the court determines, and shall place the person 2
on probation, under the charge and supervision of the probation officer of the court 3
during the suspension. 4
* Sec. 5. AS 12.55.155(d) is amended to read: 5
(d) The following factors shall be considered by the sentencing court if proven 6
in accordance with this section, and may allow imposition of a sentence below the 7
presumptive range set out in AS 12.55.125: 8
(1) the offense was principally accomplished by another person, and 9
the defendant manifested extreme caution or sincere concern for the safety or well-10
being of the victim; 11
(2) the defendant, although an accomplice, played only a minor role in 12
the commission of the offense; 13
(3) the defendant committed the offense under some degree of duress, 14
coercion, threat, or compulsion insufficient to constitute a complete defense, but that 15
significantly affected the defendant's conduct; 16
(4) the conduct of a youthful defendant was substantially influenced by 17
another person more mature than the defendant; 18
(5) the conduct of an aged defendant was substantially a product of 19
physical or mental infirmities resulting from the defendant's age; 20
(6) in a conviction for assault under AS 11.41.200 - 11.41.220, the 21
defendant acted with serious provocation from the victim; 22
(7) except in the case of a crime defined by AS 11.41.410 - 11.41.470, 23
the victim provoked the crime to a significant degree; 24
(8) before the defendant knew that the criminal conduct had been 25
discovered, the defendant fully compensated or made a good faith effort to fully 26
compensate the victim of the defendant's criminal conduct for any damage or injury 27
sustained; 28
(9) the conduct constituting the offense was among the least serious 29
conduct included in the definition of the offense; 30
(10) the defendant was motivated to commit the offense solely by an 31 33-LS1213\A
HB 379 -4- HB0379a
New Text Underlined [DELETED TEXT BRACKETED]
overwhelming compulsion to provide for emergency necessities for the defendant's 1
immediate family; 2
(11) after commission of the offense for which the defendant is being 3
sentenced, the defendant assisted authorities to detect, apprehend, or prosecute other 4
persons who committed an offense; 5
(12) the facts surrounding the commission of the offense and any 6
previous offenses by the defendant establish that the harm caused by the defendant's 7
conduct is consistently minor and inconsistent with the imposition of a substantial 8
period of imprisonment; 9
(13) the defendant is convicted of an offense specified in AS 11.71 and 10
the offense involved small quantities of a controlled substance; 11
(14) the defendant is convicted of an offense specified in AS 11.71 and 12
the offense involved the distribution of a controlled substance, other than a schedule 13
IA controlled substance, to a personal acquaintance who is 19 years of age or older for 14
no profit; 15
(15) the defendant is convicted of an offense specified in AS 11.71 and 16
the offense involved the possession of a small amount of a controlled substance for 17
personal use in the defendant's home; 18
(16) in a conviction for assault or attempted assault or for homicide or 19
attempted homicide, the defendant acted in response to domestic violence perpetrated 20
by the victim against the defendant and the domestic violence consisted of aggravated 21
or repeated instances of assaultive behavior; 22
(17) except in the case of an offense defined by AS 11.41 or 23
AS 11.46.400, the defendant has been convicted of a class B or C felony, and, at the 24
time of sentencing, has successfully completed a court-ordered treatment program as 25
defined in AS 28.35.028 that was begun after the offense was committed; 26
(18) except in the case of an offense defined under AS 11.41 or 27
AS 11.46.400 or a defendant who has previously been convicted of a felony, the 28
defendant committed the offense while suffering from a mental disease or defect as 29
defined in AS 12.47.130 that was insufficient to constitute a complete defense but that 30
significantly affected the defendant's conduct; 31 33-LS1213\A
HB0379a -5- HB 379
New Text Underlined [DELETED TEXT BRACKETED]
(19) the defendant is convicted of an offense under AS 11.71, and the 1
defendant sought medical assistance for another person who was experiencing a drug 2
overdose contemporaneously with the commission of the offense; 3
(20) except in the case of an offense defined under AS 11.41 or 4
AS 11.46.400, the defendant committed the offense while suffering from a condition 5
diagnosed 6
(A) as a fetal alcohol spectrum disorder, the fetal alcohol 7
spectrum disorder substantially impaired the defendant's judgment, behavior, 8
capacity to recognize reality, or ability to cope with the ordinary demands of 9
life, and the fetal alcohol spectrum disorder, though insufficient to constitute a 10
complete defense, significantly affected the defendant's conduct; in this 11
subparagraph, "fetal alcohol spectrum disorder" means a condition of impaired 12
brain function in the range of permanent birth defects caused by maternal 13
consumption of alcohol during pregnancy; or 14
(B) as combat-related post-traumatic stress disorder or combat-15
related traumatic brain injury, the combat-related post-traumatic stress disorder 16
or combat-related traumatic brain injury substantially impaired the defendant's 17
judgment, behavior, capacity to recognize reality, or ability to cope with the 18
ordinary demands of life, and the combat-related post-traumatic stress disorder 19
or combat-related traumatic brain injury, though insufficient to constitute a 20
complete defense, significantly affected the defendant's conduct; in this 21
subparagraph, "combat-related post-traumatic stress disorder or combat-related 22
traumatic brain injury" means post-traumatic stress disorder or traumatic brain 23
injury resulting from combat with an enemy of the United States in the line of 24
duty while on active duty as a member of the armed forces of the United 25
States; nothing in this subparagraph is intended to limit the application of (18) 26
of this subsection; 27
(21) the defendant 28
(A) [,] as a condition of release ordered by the court, 29
successfully completed an alcohol and substance abuse monitoring program 30
established under AS 47.38.020; 31 33-LS1213\A
HB 379 -6- HB0379a
New Text Underlined [DELETED TEXT BRACKETED]
(B) was a participant in the driving while under the 1
influence diversion program under AS 28.35.043. 2
* Sec. 6. AS 12.61.010(a) is amended to read: 3
(a) Victims of crimes have the following rights: 4
(1) the right to be present during any proceeding in 5
(A) the prosecution and sentencing of a defendant if the 6
defendant has the right to be present, including being present during testimony 7
even if the victim is likely to be called as a witness; 8
(B) the adjudication of a minor as provided under 9
AS 47.12.110; 10
(2) the right to be notified by the appropriate law enforcement agency 11
or the prosecuting attorney of any request for a continuance that may substantially 12
delay the prosecution and of the date of trial, sentencing, including a proceeding 13
before a three-judge panel under AS 12.55.175, an appeal, and any hearing in which 14
the defendant's release from custody is considered; 15
(3) the right to be notified that a sentencing hearing or a court 16
proceeding to which the victim has been subpoenaed will not occur as scheduled; 17
(4) the right to receive protection from harm and threats of harm 18
arising out of cooperation with law enforcement and prosecution efforts and to be 19
provided with information as to the protection available; 20
(5) the right to be notified of the procedure to be followed to apply for 21
and receive any compensation under AS 18.67; 22
(6) at the request of the prosecution or a law enforcement agency, the 23
right to cooperate with the criminal justice process without loss of pay and other 24
employee benefits except as authorized by AS 12.61.017 and without interference in 25
any form by the employer of the victim of crime; 26
(7) the right to obtain access to immediate medical assistance and not 27
to be detained for an unreasonable length of time by a law enforcement agency before 28
having medical assistance administered; however, an employee of the law 29
enforcement agency may, if necessary, accompany the person to a medical facility to 30
question the person about the criminal incident if the questioning does not hinder the 31 33-LS1213\A
HB0379a -7- HB 379
New Text Underlined [DELETED TEXT BRACKETED]
administration of medical assistance; 1
(8) the right to make a written or oral statement for use in preparation 2
of the presentence report of a felony defendant; 3
(9) the right to appear personally at the defendant's sentencing hearing 4
to present a written statement and to give sworn testimony or an unsworn oral 5
presentation; 6
(10) the right to be informed by the prosecuting attorney, at any time 7
after the defendant's conviction, about the complete record of the defendant's 8
convictions; 9
(11) the right to notice under AS 12.47.095 concerning the status of the 10
defendant found not guilty by reason of insanity; 11
(12) the right to notice under AS 33.16.087 of a hearing concerning 12
special medical parole of the defendant; 13
(13) the right to notice under AS 33.16.120 of a hearing to consider or 14
review discretionary parole of the defendant; 15
(14) the right to notice under AS 33.30.013 of the release or escape of 16
the defendant; [AND] 17
(15) the right to be notified orally and in writing of and receive 18
information about the office of victims' rights from the law enforcement officer 19
initially investigating the crime and from the prosecuting attorney assigned to the 20
offense; at a minimum, the information provided must include the address, telephone 21
number, and Internet address of the office of victims' rights; this paragraph 22
(A) applies only to victims of felonies and to victims of class A 23
misdemeanors if the class A misdemeanor is a crime involving domestic 24
violence or a crime against a person under AS 11.41; if the victim is an 25
unemancipated minor, the law enforcement officer and the prosecuting 26
attorney shall also provide the notice required by this paragraph to the parent 27
or guardian of the minor; 28
(B) is satisfied if, at the time of initial contact with the crime 29
victim, the investigating officer and prosecuting attorney each give each crime 30
victim a brochure or other written material prepared by the office of victims' 31 33-LS1213\A
HB 379 -8- HB0379a
New Text Underlined [DELETED TEXT BRACKETED]
rights and provided to law enforcement agencies for that purpose; and 1
(16) the right to notice under AS 28.35.043 of a hearing on a 2
petition for diversion agreement and the right to make a written or oral 3
statement on the petition. 4
* Sec. 7. AS 18.85.100(a) is amended to read: 5
(a) An indigent person who is under formal charge of having committed a 6
serious crime and the crime has been the subject of an initial appearance or subsequent 7
proceeding, or is being detained under a conviction of a serious crime, or is on 8
probation or parole, or is entitled to representation under the Supreme Court 9
Delinquency or Child in Need of Aid Rules, as a participant in the driving while 10
under the influence diversion program under AS 28.35.043, or at a review hearing 11
under AS 47.12.105(d), or is isolated, quarantined, or required to be tested under an 12
order issued under AS 18.15.355 - 18.15.395, or is a respondent in a proceeding under 13
AS 47.30, is entitled 14
(1) to be represented, in connection with the crime or proceeding, by 15
an attorney to the same extent as a person retaining an attorney is entitled; and 16
(2) to be provided with the necessary services and facilities of this 17
representation, including investigation and other preparation. 18
* Sec. 8. AS 28.15.151(a) is amended to read: 19
(a) The department shall maintain a file of 20
(1) every driver's license application, license or permit, and duplicate 21
driver's license issued by it; 22
(2) every license that has been suspended, revoked, canceled, limited, 23
restricted, or denied, and the reasons for those actions; 24
(3) all accident reports required to be forwarded to the department 25
under this title; [AND] 26
(4) every disqualification of an individual from operating a 27
commercial motor vehicle; and 28
(5) every diversion agreement entered into by an individual under 29
AS 28.35.043. 30
* Sec. 9. AS 28.35.030(b) is amended to read: 31 33-LS1213\A
HB0379a -9- HB 379
New Text Underlined [DELETED TEXT BRACKETED]
(b) Except as provided under (n) of this section, driving while under the 1
influence of an alcoholic beverage, inhalant, or controlled substance is a class A 2
misdemeanor. Upon conviction, 3
(1) the court shall impose a minimum sentence of imprisonment of 4
(A) not less than 72 consecutive hours, require the person to 5
use an ignition interlock device after the person regains the privilege, including 6
any limited privilege, to operate a motor vehicle for a minimum of six months, 7
and impose a fine of not less than $1,500 if the person has not been previously 8
convicted and the person did not complete the driving while under the 9
influence diversion program under AS 28.35.043; 10
(B) not less than 20 days, require the person to use an ignition 11
interlock device after the person regains the privilege, including any limited 12
privilege, to operate a motor vehicle for a minimum of 12 months, and impose 13
a fine of not less than $3,000 if the person has been previously convicted once; 14
(C) not less than 60 days, require the person to use an ignition 15
interlock device after the person regains the privilege, including any limited 16
privilege, to operate a motor vehicle for a minimum of 18 months, and impose 17
a fine of not less than $4,000 if the person has been previously convicted twice 18
and is not subject to punishment under (n) of this section; 19
(D) not less than 120 days, require the person to use an ignition 20
interlock device after the person regains the privilege, including any limited 21
privilege, to operate a motor vehicle for a minimum of 24 months, and impose 22
a fine of not less than $5,000 if the person has been previously convicted three 23
times and is not subject to punishment under (n) of this section; 24
(E) not less than 240 days, require the person to use an ignition 25
interlock device after the person regains the privilege, including any limited 26
privilege, to operate a motor vehicle for a minimum of 30 months, and impose 27
a fine of not less than $6,000 if the person has been previously convicted four 28
times and is not subject to punishment under (n) of this section; 29
(F) not less than 360 days, require the person to use an ignition 30
interlock device after the person regains the privilege, including any limited 31 33-LS1213\A
HB 379 -10- HB0379a
New Text Underlined [DELETED TEXT BRACKETED]
privilege, to operate a motor vehicle for a minimum of 36 months, and impose 1
a fine of not less than $7,000 if the person has been previously convicted more 2
than four times and is not subject to punishment under (n) of this section; 3
(2) the court may not 4
(A) suspend execution of sentence or grant probation except on 5
condition that the person 6
(i) serve the minimum imprisonment under (1) of this 7
subsection; 8
(ii) pay the minimum fine required under (1) of this 9
subsection; 10
(B) suspend imposition of sentence, except for a defendant 11
who is a participant in the driving while under the influence diversion 12
program under AS 28.35.043; or 13
(C) suspend the requirement for an ignition interlock device for 14
a violation of (a)(1) of this section involving an alcoholic beverage or 15
intoxicating liquor, singly or in combination, or a violation of (a)(2) of this 16
section; 17
(3) the court shall revoke the person's driver's license, privilege to 18
drive, or privilege to obtain a license under AS 28.15.181, and may order that the 19
motor vehicle, aircraft, or watercraft that was used in commission of the offense be 20
forfeited under AS 28.35.036; and 21
(4) the court may order that the person, while incarcerated or as a 22
condition of probation or parole, take a drug or combination of drugs intended to 23
prevent the consumption of an alcoholic beverage; a condition of probation or parole 24
imposed under this paragraph is in addition to any other condition authorized under 25
another provision of law. 26
* Sec. 10. AS 28.35 is amended by adding new sections to read: 27
Sec. 28.35.043. Driving while under the influence diversion program. (a) 28
The driving while under the influence diversion program is established in the Alaska 29
Court System. 30
(b) At the initial court appearance or arraignment of a person for an offense 31 33-LS1213\A
HB0379a -11- HB 379
New Text Underlined [DELETED TEXT BRACKETED]
under AS 28.35.030, the court shall inform a defendant charged under AS 28.35.030 1
that the defendant may be eligible for participation in the driving while under the 2
influence diversion program. A defendant is eligible if the defendant 3
(1) has never been convicted under AS 28.35.030 or a similar law in 4
another jurisdiction; for purposes of this paragraph, a prior conviction does not include 5
a violation under AS 04.16.050 or a similar law in another jurisdiction; 6
(2) does not have a pending charge under AS 28.35.030 or a similar 7
law in another jurisdiction; 8
(3) was not charged with any other criminal charges in the present 9
offense and the present offense did not involve an accident resulting in death or in 10
physical injury to any person other than the defendant; 11
(4) does not have a pending charge under AS 11.41.100 - 11.41.140 or 12
AS 11.41.200 - 11.41.230, or a similar law in another jurisdiction, that resulted from 13
the defendant's operation of a motor vehicle; 14
(5) at the time of the commission of the present offense, was not 15
participating in the driving while under the influence diversion program under this 16
section or in a similar program in another jurisdiction; 17
(6) has not, within 15 years before the date of the commission of the 18
present offense, participated in the driving while under the influence diversion 19
program in this state or a similar program in another jurisdiction; 20
(7) did not hold a commercial driver's license on the date of the 21
commission of the present offense; 22
(8) was not operating a commercial motor vehicle at the time of the 23
commission of the present offense. 24
(c) A defendant who is eligible for the driving while under the influence 25
diversion program shall file a petition and a filing fee in the amount of $490 with the 26
court to request admittance to the diversion program. The petition shall be filed within 27
30 days after the date of the defendant's first appearance before a judicial officer, 28
unless a later filing date is allowed by the court for good cause. For purposes of this 29
subsection, an objection to the complaint, a motion to suppress, or a motion for an 30
omnibus hearing do not constitute good cause. A petition may not be filed after entry 31 33-LS1213\A
HB 379 -12- HB0379a
New Text Underlined [DELETED TEXT BRACKETED]
of a guilty plea or a no contest plea or after the commencement of a trial on the charge. 1
(d) Notwithstanding (c) of this section, a petition may be filed up to 14 days 2
after the date the prosecuting attorney sends laboratory test results of the defendant's 3
urine or blood sample analysis to the defendant's attorney, or to the defendant if the 4
defendant is unrepresented, if 5
(1) the charging document alleges the defendant was driving under the 6
influence of an alcoholic beverage, inhalant, or controlled substance; 7
(2) the defendant has not received notice of what the defendant's blood 8
alcohol content was at the time the conduct occurred or if at the time the conduct 9
occurred the defendant had less than 0.08 percent by weight of alcohol in the blood; 10
and 11
(3) a police officer obtained a urine or blood sample from the 12
defendant. 13
(e) A petition for admittance into the driving while under the influence 14
diversion program shall be made using a form prescribed by the Alaska Court System 15
and made available to a defendant at the initial court appearance or arraignment and 16
include 17
(1) a plea of guilty or no contest to the charge of driving while under 18
the influence of an alcoholic beverage, inhalant, or controlled substance under 19
AS 28.35.030 signed by the defendant; 20
(2) a sworn statement by the defendant that the defendant is eligible to 21
enter into the driving while under the influence diversion program; 22
(3) an agreement by the defendant to complete a screening interview to 23
determine the possible existence and degree of an alcohol or substance abuse problem 24
at an agency or organization designated by the court; 25
(4) an agreement by the defendant to complete, at the defendant's 26
expense, the program of treatment indicated necessary by the screening interview 27
under (3) of this subsection or if, following two negative screening reports of an 28
alcohol or substance abuse problem, ordered by the court; 29
(5) an agreement by the defendant not to use alcoholic beverages, 30
inhalants, or controlled substances during the driving while under the influence 31 33-LS1213\A
HB0379a -13- HB 379
New Text Underlined [DELETED TEXT BRACKETED]
diversion program; this agreement does not preclude 1
(A) the consumption of sacramental wine given or provided as 2
part of a religious rite or service; 3
(B) the defendant's use of a prescription drug prescribed for the 4
defendant if the defendant uses the prescribed drug as directed; 5
(C) the defendant's use of a nonprescription drug used as 6
directed on the nonprescription drug's label; 7
(6) a notice to the defendant that, if the court receives notice during the 8
course of the diversion program that the defendant committed an offense under 9
AS 28.35.029 or 28.35.030, the defendant will be in violation of the diversion 10
agreement; 11
(7) an agreement by the defendant to keep the court advised of the 12
defendant's current mailing address during the course of the diversion program; 13
(8) an acknowledgment by the defendant that failure to complete the 14
diversion program will result in subsequent action upon the charge or any other 15
offenses based on the same criminal episode, and that by participation in the diversion 16
program, the defendant has not been placed in jeopardy for the same offense until 17
completion of the program and dismissal of the charge with prejudice; 18
(9) an agreement by the defendant to pay court-appointed attorney fees 19
as determined by the court before the completion of the diversion program; and 20
(10) an agreement by the defendant to pay restitution if ordered by the 21
court, during the diversion period on a schedule determined by the court. 22
(f) The court may allow installment payments for the filing fee for a petition 23
under (c) of this section or may waive all or part of the filing fee or court-appointed 24
attorney fees if a defendant is indigent. 25
(g) The prosecuting attorney may, within 15 days after the date of service, file 26
a written objection to the petition and a request for a hearing. 27
(h) If the commission of the offense resulted in damage to the property of a 28
person other than the defendant, the victim of the property damage has a right to be 29
present and heard at any hearing on a petition for diversion. 30
(i) After the time requested for a hearing has expired or after a hearing 31 33-LS1213\A
HB 379 -14- HB0379a
New Text Underlined [DELETED TEXT BRACKETED]
requested under (g) of this section has occurred, the court shall determine whether to 1
grant or deny a petition for admittance into the driving while under the influence 2
diversion program under this section. In making a determination under this section, the 3
court 4
(1) shall consider whether a diversion agreement will benefit the 5
defendant and the community; 6
(2) may take into consideration whether 7
(A) there was an early recognition by the defendant during any 8
previous court proceedings that a course of diagnosis and treatment of problem 9
drinking, alcoholism, or substance abuse would be beneficial; 10
(B) there is reasonable probability that the defendant will 11
cooperate with the diagnostic assessment and treatment agencies; 12
(C) the defendant will observe the restrictions contained in the 13
diversion agreement; 14
(D) the offense was committed in a motor vehicle and there 15
was a passenger in the motor vehicle who was under 18 years of age and at 16
least three years younger than the defendant; 17
(3) shall deny the petition if 18
(A) after the date the defendant filed the petition, the defendant 19
was charged or convicted under AS 28.35.030 or a similar law in another 20
jurisdiction for a different criminal episode; 21
(B) the defendant failed to appear at an arraignment on the 22
present offense without good cause; 23
(C) after the date the defendant filed the petition, the defendant 24
participated in the driving while under the influence diversion program or any 25
similar alcohol or drug rehabilitation program, other than a program entered 26
into as a result of the charge for the present offense, in this state or in another 27
jurisdiction; 28
(D) after the date the defendant filed the petition, the defendant 29
was charged with or convicted of an offense under AS 11.41.100 - 11.41.230 30
that resulted from the operation of a motor vehicle in this state or in another 31 33-LS1213\A
HB0379a -15- HB 379
New Text Underlined [DELETED TEXT BRACKETED]
jurisdiction; 1
(E) the defendant has been convicted of a prior offense under 2
AS 28.35.030; 3
(4) may not deny the petition because the defendant is a member of the 4
military and has been called or might be called to active duty and the military service 5
will impair the defendant's ability to complete the diversion program. 6
(j) If a court grants a petition for admittance into the driving while under the 7
influence diversion program, the court shall accept the guilty plea or no contest plea 8
filed as part of the petition under (e) of this section, but shall withhold entry of a 9
judgment of conviction. The court shall sign the petition and indicate the date the 10
diversion period begins and ends and the date on which the driving while under the 11
influence offense occurred. If the defendant has not already been processed by the 12
Department of Corrections or a municipal correctional facility on the charge of driving 13
while under the influence of an alcoholic beverage, inhalant, or controlled substance 14
under AS 28.35.030, the court shall require the defendant to submit to processing. 15
(k) The signed and dated petition is the diversion agreement between the 16
defendant and the court. The court shall make the diversion agreement part of the 17
record of the case. The court shall notify the Department of Administration of the 18
diversion agreement within 48 hours after granting the petition. 19
(l) A diversion agreement shall be for a period of one year after the date the 20
court grants the petition. During the diversion period, the court shall stay the criminal 21
offense proceeding pending completion of the diversion agreement or termination of 22
the diversion agreement. 23
(m) If the court denies a petition submitted under (e) of this section, the court 24
shall proceed with the criminal case on the charges brought against the defendant. The 25
guilty plea or no contest plea filed as part of the petition for admittance into the 26
driving while under the influence diversion program under (e) of this section may not 27
be used in the offense proceeding. A statement by the defendant about the offense 28
made during the course of screening or a treatment program to a person employed by 29
the treatment program may not be offered or received as evidence in any criminal or 30
civil action or proceeding arising out of the conduct on which the charge of driving 31 33-LS1213\A
HB 379 -16- HB0379a
New Text Underlined [DELETED TEXT BRACKETED]
while under the influence of an alcoholic beverage, inhalant, or controlled substance 1
under AS 28.35.030 is based. 2
(n) The court may allow a defendant who is an active duty member of the 3
military to participate in a comparable treatment program conducted by or authorized 4
by a government entity in another jurisdiction to satisfy a treatment program 5
requirement as part of the defendant's diversion agreement. 6
(o) If a victim impact program exists in the community in which the defendant 7
resides, a court may order the defendant to attend a victim impact treatment session as 8
part of the defendant's diversion agreement. If the court orders attendance under this 9
subsection, the court may require the defendant to pay a fee of not less than $5 and not 10
more than $50 to the victim impact program to offset the cost of the defendant's 11
participation. 12
(p) A defendant may file a motion for an extension of the diversion period 13
within 30 days before the end of the diversion period or, if the defendant is an active 14
duty member of the military, at any time before the end of the diversion period. 15
(q) The court may grant a motion for extension of the driving while under the 16
influence diversion program if the court finds the defendant made a good faith effort 17
to complete the conditions of the diversion agreement and the defendant is able to 18
complete the conditions of the diversion agreement within the requested extended 19
diversion period. Only one extension may be granted for not more than 180 days from 20
the date the original diversion period ended, unless the defendant is an active duty 21
member of the military or is a member of the military that has received active duty 22
orders and the defendant demonstrates the military service will impair the defendant's 23
ability to complete the conditions of the diversion agreement and no comparable 24
treatment program is available. 25
(r) If the court grants a motion for extension, the defendant shall fully comply 26
with the conditions of the diversion agreement within the extended diversion period. If 27
the court finds the defendant failed to comply with the diversion agreement within the 28
extended diversion period, the court shall enter a guilty plea or no contest plea filed as 29
part of the petition under (e) of this section, shall enter a judgment of conviction, and 30
shall sentence the defendant.
31 33-LS1213\A
HB0379a -17- HB 379
New Text Underlined [DELETED TEXT BRACKETED]
(s) If the court denies a motion for extension, the court shall enter the guilty 1
plea or no contest plea included in the petition under (e) of this section, shall enter a 2
judgment of conviction, and shall sentence the defendant. 3
(t) At any time before the completion of a defendant's diversion period and 4
dismissal with prejudice, the court may, on its own motion or on the motion of the 5
prosecuting attorney, issue an order requiring the defendant to appear and show cause 6
as to why the court should not terminate the diversion agreement. The order to show 7
cause must 8
(1) state the reasons for the proposed termination; 9
(2) specify the amount of any fees owed and, if the amount owed is 10
$500 or less, inform the defendant that the court may dismiss with prejudice the 11
charge of driving while under the influence if the person has complied with and 12
performed all of the conditions of the diversion agreement and pays the remaining 13
amount before or on the date of the hearing; and 14
(3) set an appearance date. 15
(u) At an order to show cause hearing, the court 16
(1) shall terminate the diversion agreement and 17
(A) enter the guilty plea or no contest plea that was filed as part 18
of the petition under (e) of this section if 19
(i) the defendant fails to appear at a hearing on the order 20
to show cause; 21
(ii) the court finds by a preponderance of the evidence 22
that the defendant no longer qualifies for diversion under the conditions 23
described in (b) of this section; or 24
(iii) the court finds by a preponderance of the evidence 25
that the defendant failed to fulfill the terms of the diversion agreement; 26
(B) dismiss the charge with prejudice if the defendant has 27
complied with and performed all of the conditions of the defendant's diversion 28
agreement, except that the defendant owes $500 or less of the fees required, 29
and the defendant pays the balance of any fees owed before the hearing; 30
(2) may not terminate a diversion agreement for failure to pay 31 33-LS1213\A
HB 379 -18- HB0379a
New Text Underlined [DELETED TEXT BRACKETED]
restitution if the defendant has otherwise complied with and performed all of the 1
conditions of the diversion agreement. 2
(v) If the court terminates the diversion agreement, the court may take into 3
account any time toward partial fulfillment of the diversion agreement by the 4
defendant at sentencing. 5
(w) After the conclusion of the defendant's diversion period, a defendant who 6
has complied with and satisfied the conditions of the diversion agreement may apply 7
by motion to the court for an order dismissing the charge with prejudice. 8
(x) If a defendant does not file a motion for dismissal within six months after 9
the conclusion of the defendant's diversion period, the court may enter an order 10
dismissing the charge with prejudice if the court finds that the defendant fully 11
complied with and performed the conditions of the diversion agreement. Before a 12
court enters an order dismissing the charge with prejudice, the court shall enter a 13
judgment for any remaining amount of restitution owed by the defendant. 14
(y) If a defendant is an active duty member of the military or is a member of 15
the military, the court shall allow the defendant's appearance by telephone or by other 16
means, if the defendant's military service authorizes the appearance. If the defendant's 17
military service prohibits the defendant's appearance by telephone or other means and 18
prohibits the defendant from aiding and assisting the attorney who would appear on 19
the defendant's behalf, the court shall stay a termination proceeding. 20
(z) Except as prohibited by federal law or regulation, every provider of a 21
screening interview and subsequent treatment programs to which persons are ordered 22
under this section shall supply the judge, prosecutor, defendant, and an agency 23
involved in the defendant's treatment with information and reports concerning the 24
defendant's past and present assessment, treatment, and progress. Information 25
compiled under this subsection is confidential and may only be used in connection 26
with court proceedings involving the defendant's treatment, including use by a court in 27
sentencing a person convicted under this section, or by an officer of the court in 28
preparing a presentence report for the use of the court in sentencing a person convicted 29
under this section. Monitoring of a defendant's progress under a diversion agreement 30
shall be the responsibility of the agency or organization that conducted the screening 31 33-LS1213\A
HB0379a -19- HB 379
New Text Underlined [DELETED TEXT BRACKETED]
interview. The agency or organization shall make a report to the court stating the 1
defendant's successful completion or failure to complete all or any part of the 2
treatment program specified by the screening interview. The form of the report shall 3
be determined by agreement between the court and the agency or organization 4
performing the screening interview. The court shall make the report of the agency or 5
organization performing the screening interview that is required by this subsection a 6
part of the record of the case. 7
Sec. 28.35.099. Definitions for AS 28.35.029 - 28.35.099. In AS 28.35.029 - 8
28.35.099, 9
(1) "alcohol safety action program" means a program for alcohol and 10
substance abuse screening, referral, and monitoring developed and implemented or 11
approved by the Department of Health under AS 47.37; 12
(2) "controlled substance" has the meaning given in AS 28.33.190; 13
(3) "military" means the armed forces of the United States, the United 14
States Coast Guard, or the Alaska National Guard. 15
* Sec. 11. AS 43.23.140(b) is amended to read: 16
(b) An exemption is not available under this section for permanent fund 17
dividends taken to satisfy 18
(1) child support obligations required by court order or decision of the 19
child support services agency under AS 25.27.140 - 25.27.220; 20
(2) court ordered restitution under AS 12.55.045 - 12.55.051, 21
12.55.100, AS 28.35.043, or AS 47.12.120(b)(4); 22
(3) claims on defaulted education loans under AS 43.23.160; 23
(4) court ordered fines; 24
(5) writs of execution under AS 09.35 of a judgment that is entered 25
(A) against a minor in a civil action to recover damages and 26
court costs; 27
(B) under AS 09.65.255 against the parent, parents, or legal 28
guardian of an unemancipated minor; 29
(6) a debt owed by an eligible individual to an agency of the state, 30
including the University of Alaska, unless the debt is contested and an appeal is 31 33-LS1213\A
HB 379 -20- HB0379a
New Text Underlined [DELETED TEXT BRACKETED]
pending, or the time limit for filing an appeal has not expired; 1
(7) a debt owed to a person for a program for the rehabilitation of 2
perpetrators of domestic violence required under AS 12.55.101, AS 18.66.100(c)(15), 3
AS 25.20.061(3), or AS 33.16.150(f)(2); 4
(8) a judgment for unpaid rent or damage owed to a landlord by an 5
eligible individual that was a tenant of the landlord; in this paragraph, "tenant" has the 6
meaning given in AS 34.03.360; 7
(9) court-ordered forfeiture of an appearance or performance bond 8
under AS 12.30.075. 9
* Sec. 12. AS 47.37.210(a) is amended to read: 10
(a) Except as required by AS 28.35.030(d) or 28.35.043(z), the registration 11
and other records of treatment facilities shall remain confidential and are privileged to 12
the patient. 13
* Sec. 13. AS 28.35.039 is repealed. 14
* Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to 15
read: 16
INDIRECT COURT RULE AMENDMENT. (a) AS 18.85.100(a), as amended by sec. 17
7 of this Act, has the effect of changing Rule 39, Alaska Rules of Criminal Procedure, by 18
authorizing court-appointed counsel to a defendant who is participating in the driving while 19
under the influence diversion program under AS 28.35.043, enacted by sec. 10 of this Act. 20
(b) AS 28.35.043, enacted by sec. 10 of this Act, has the effect of changing Rule 9, 21
Alaska Rules of Administration, by setting a filing fee amount for participation in the driving 22
while under the influence diversion program. 23
* Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to 24
read: 25
APPLICABILITY. Rule 9, Alaska Rules of Administration, as amended by sec. 14 of 26
this Act, takes effect only if sec. 14 of this Act receives the two-thirds majority vote of each 27
house required by art. IV, sec. 15, Constitution of the State of Alaska. 28
* Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 29
read: 30
TRANSITION: REGULATIONS. The Department of Administration may adopt 31 33-LS1213\A
HB0379a -21- HB 379
New Text Underlined [DELETED TEXT BRACKETED]
regulations necessary to implement the changes made by this Act. The regulations take effect 1
under AS 44.62 (Administrative Procedure Act), but not before the effective date of the law 2
implemented by the regulation. 3
* Sec. 17. Section 16 of this Act takes effect immediately under AS 01.10.070(c). 4
* Sec. 18. Except as provided in sec. 17 of this Act, this Act takes effect July 1, 2024. 5