Alaska 2023-2024 Regular Session

Alaska House Bill HB379 Compare Versions

Only one version of the bill is available at this time.

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2	2	HB0379a -1- HB 379
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11	11	HOUSE BILL NO. 379
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13	13	IN THE LEGISLATURE OF THE STATE OF ALASKA
14	14
15	15	THIRTY-THIRD LEGISLATURE - SECOND SESSION
16	16
17	17	BY REPRESENTATIVE PRAX
18	18
19	19	Introduced: 2/20/24
20	20	Referred: State Affairs, Judiciary
21	21
22	22
23	23	A BILL
24	24
25	25	FOR AN ACT ENTITLED
26	26
27	27	"An Act establishing the driving while under the influence diversion program for 1
28	28	eligible persons charged with driving while under the influence; relating to judgment for 2
29	29	restitution; relating to suspended imposition of sentence; relating to records kept by the 3
30	30	Department of Administration; relating to operating a vehicle, aircraft, or watercraft 4
31	31	while under the influence of an alcoholic beverage, inhalant, or controlled substance; 5
32	32	amending Rule 9, Alaska Rules of Administration, and Rule 39, Alaska Rules of 6
33	33	Criminal Procedure; and providing for an effective date." 7
34	34	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 8
35	35	* Section 1. AS 04.16.160(a) is amended to read: 9
36	36	(a) Except as otherwise provided by law, a person who is 21 years of age or 10
37	37	older may not purchase alcoholic beverages if the person has been ordered to refrain 11
38	38	from consuming alcoholic beverages under AS 12.55.015(a)(13) or as part of a 12
39	39	sentence for conviction of a crime under AS 28.35.030, 28.35.032, or a similar 13 33-LS1213\A
40	40	HB 379 -2- HB0379a
41	41	New Text Underlined [DELETED TEXT BRACKETED]
42	42
43	43	municipal ordinance, as part of the driving while under the influence diversion 1
44	44	program under AS 28.35.043, as a condition of probation or parole from a conviction 2
45	45	under AS 28.35.030, 28.35.032, or a similar municipal ordinance, or as a condition of 3
46	46	probation or parole for any other crime. The restriction on purchasing alcoholic 4
47	47	beverages applies during the period that the person is required to refrain from 5
48	48	consuming alcoholic beverages under the sentence or condition of probation or parole. 6
49	49	* Sec. 2. AS 09.38.500(8) is amended to read: 7
50	50	(8) "judgment of restitution" 8
51	51	(A) includes restitution ordered 9
52	52	(i) under AS 47.12.120 that is considered as a civil 10
53	53	judgment enforceable by execution under AS 47.12.170; [AND] 11
54	54	(ii) as part of a sentence under AS 12.55.025(f) that is 12
55	55	considered as a judgment for money entered in a civil action; and 13
56	56	(iii) as part of the diversion agreement under 14
57	57	AS 28.35.043; 15
58	58	(B) does not include a judgment for 16
59	59	(i) civil damages for torts under state law; or 17
60	60	(ii) restitution as a result of a violation of state law that 18
61	61	is not a felony or misdemeanor; 19
62	62	* Sec. 3. AS 12.55.039(b) is amended to read: 20
63	63	(b) A court may not fail to impose the surcharge required under this section. 21
64	64	The surcharge may not be waived, deferred, or suspended, unless the defendant is a 22
65	65	participant in the driving while under the influence diversion program under 23
66	66	AS 28.35.043. A court may allow a defendant who is unable to pay the surcharge 24
67	67	required to be imposed under this section to perform community work under 25
68	68	AS 12.55.055(c) in lieu of the surcharge. 26
69	69	* Sec. 4. AS 12.55.085(a) is amended to read: 27
70	70	(a) Except as provided in AS 28.35.043 or (f) of this section, if it appears that 28
71	71	there are circumstances in mitigation of the punishment, or that the ends of justice will 29
72	72	be served, the court may, in its discretion, suspend the imposition of sentence and may 30
73	73	direct that the suspension continue for a period of time, not exceeding the maximum 31 33-LS1213\A
74	74	HB0379a -3- HB 379
75	75	New Text Underlined [DELETED TEXT BRACKETED]
76	76
77	77	term of sentence that may be imposed or a period of one year, whichever is greater, 1
78	78	and upon the terms and conditions that the court determines, and shall place the person 2
79	79	on probation, under the charge and supervision of the probation officer of the court 3
80	80	during the suspension. 4
81	81	* Sec. 5. AS 12.55.155(d) is amended to read: 5
82	82	(d) The following factors shall be considered by the sentencing court if proven 6
83	83	in accordance with this section, and may allow imposition of a sentence below the 7
84	84	presumptive range set out in AS 12.55.125: 8
85	85	(1) the offense was principally accomplished by another person, and 9
86	86	the defendant manifested extreme caution or sincere concern for the safety or well-10
87	87	being of the victim; 11
88	88	(2) the defendant, although an accomplice, played only a minor role in 12
89	89	the commission of the offense; 13
90	90	(3) the defendant committed the offense under some degree of duress, 14
91	91	coercion, threat, or compulsion insufficient to constitute a complete defense, but that 15
92	92	significantly affected the defendant's conduct; 16
93	93	(4) the conduct of a youthful defendant was substantially influenced by 17
94	94	another person more mature than the defendant; 18
95	95	(5) the conduct of an aged defendant was substantially a product of 19
96	96	physical or mental infirmities resulting from the defendant's age; 20
97	97	(6) in a conviction for assault under AS 11.41.200 - 11.41.220, the 21
98	98	defendant acted with serious provocation from the victim; 22
99	99	(7) except in the case of a crime defined by AS 11.41.410 - 11.41.470, 23
100	100	the victim provoked the crime to a significant degree; 24
101	101	(8) before the defendant knew that the criminal conduct had been 25
102	102	discovered, the defendant fully compensated or made a good faith effort to fully 26
103	103	compensate the victim of the defendant's criminal conduct for any damage or injury 27
104	104	sustained; 28
105	105	(9) the conduct constituting the offense was among the least serious 29
106	106	conduct included in the definition of the offense; 30
107	107	(10) the defendant was motivated to commit the offense solely by an 31 33-LS1213\A
108	108	HB 379 -4- HB0379a
109	109	New Text Underlined [DELETED TEXT BRACKETED]
110	110
111	111	overwhelming compulsion to provide for emergency necessities for the defendant's 1
112	112	immediate family; 2
113	113	(11) after commission of the offense for which the defendant is being 3
114	114	sentenced, the defendant assisted authorities to detect, apprehend, or prosecute other 4
115	115	persons who committed an offense; 5
116	116	(12) the facts surrounding the commission of the offense and any 6
117	117	previous offenses by the defendant establish that the harm caused by the defendant's 7
118	118	conduct is consistently minor and inconsistent with the imposition of a substantial 8
119	119	period of imprisonment; 9
120	120	(13) the defendant is convicted of an offense specified in AS 11.71 and 10
121	121	the offense involved small quantities of a controlled substance; 11
122	122	(14) the defendant is convicted of an offense specified in AS 11.71 and 12
123	123	the offense involved the distribution of a controlled substance, other than a schedule 13
124	124	IA controlled substance, to a personal acquaintance who is 19 years of age or older for 14
125	125	no profit; 15
126	126	(15) the defendant is convicted of an offense specified in AS 11.71 and 16
127	127	the offense involved the possession of a small amount of a controlled substance for 17
128	128	personal use in the defendant's home; 18
129	129	(16) in a conviction for assault or attempted assault or for homicide or 19
130	130	attempted homicide, the defendant acted in response to domestic violence perpetrated 20
131	131	by the victim against the defendant and the domestic violence consisted of aggravated 21
132	132	or repeated instances of assaultive behavior; 22
133	133	(17) except in the case of an offense defined by AS 11.41 or 23
134	134	AS 11.46.400, the defendant has been convicted of a class B or C felony, and, at the 24
135	135	time of sentencing, has successfully completed a court-ordered treatment program as 25
136	136	defined in AS 28.35.028 that was begun after the offense was committed; 26
137	137	(18) except in the case of an offense defined under AS 11.41 or 27
138	138	AS 11.46.400 or a defendant who has previously been convicted of a felony, the 28
139	139	defendant committed the offense while suffering from a mental disease or defect as 29
140	140	defined in AS 12.47.130 that was insufficient to constitute a complete defense but that 30
141	141	significantly affected the defendant's conduct; 31 33-LS1213\A
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145	145	(19) the defendant is convicted of an offense under AS 11.71, and the 1
146	146	defendant sought medical assistance for another person who was experiencing a drug 2
147	147	overdose contemporaneously with the commission of the offense; 3
148	148	(20) except in the case of an offense defined under AS 11.41 or 4
149	149	AS 11.46.400, the defendant committed the offense while suffering from a condition 5
150	150	diagnosed 6
151	151	(A) as a fetal alcohol spectrum disorder, the fetal alcohol 7
152	152	spectrum disorder substantially impaired the defendant's judgment, behavior, 8
153	153	capacity to recognize reality, or ability to cope with the ordinary demands of 9
154	154	life, and the fetal alcohol spectrum disorder, though insufficient to constitute a 10
155	155	complete defense, significantly affected the defendant's conduct; in this 11
156	156	subparagraph, "fetal alcohol spectrum disorder" means a condition of impaired 12
157	157	brain function in the range of permanent birth defects caused by maternal 13
158	158	consumption of alcohol during pregnancy; or 14
159	159	(B) as combat-related post-traumatic stress disorder or combat-15
160	160	related traumatic brain injury, the combat-related post-traumatic stress disorder 16
161	161	or combat-related traumatic brain injury substantially impaired the defendant's 17
162	162	judgment, behavior, capacity to recognize reality, or ability to cope with the 18
163	163	ordinary demands of life, and the combat-related post-traumatic stress disorder 19
164	164	or combat-related traumatic brain injury, though insufficient to constitute a 20
165	165	complete defense, significantly affected the defendant's conduct; in this 21
166	166	subparagraph, "combat-related post-traumatic stress disorder or combat-related 22
167	167	traumatic brain injury" means post-traumatic stress disorder or traumatic brain 23
168	168	injury resulting from combat with an enemy of the United States in the line of 24
169	169	duty while on active duty as a member of the armed forces of the United 25
170	170	States; nothing in this subparagraph is intended to limit the application of (18) 26
171	171	of this subsection; 27
172	172	(21) the defendant 28
173	173	(A) [,] as a condition of release ordered by the court, 29
174	174	successfully completed an alcohol and substance abuse monitoring program 30
175	175	established under AS 47.38.020; 31 33-LS1213\A
176	176	HB 379 -6- HB0379a
177	177	New Text Underlined [DELETED TEXT BRACKETED]
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179	179	(B) was a participant in the driving while under the 1
180	180	influence diversion program under AS 28.35.043. 2
181	181	* Sec. 6. AS 12.61.010(a) is amended to read: 3
182	182	(a) Victims of crimes have the following rights: 4
183	183	(1) the right to be present during any proceeding in 5
184	184	(A) the prosecution and sentencing of a defendant if the 6
185	185	defendant has the right to be present, including being present during testimony 7
186	186	even if the victim is likely to be called as a witness; 8
187	187	(B) the adjudication of a minor as provided under 9
188	188	AS 47.12.110; 10
189	189	(2) the right to be notified by the appropriate law enforcement agency 11
190	190	or the prosecuting attorney of any request for a continuance that may substantially 12
191	191	delay the prosecution and of the date of trial, sentencing, including a proceeding 13
192	192	before a three-judge panel under AS 12.55.175, an appeal, and any hearing in which 14
193	193	the defendant's release from custody is considered; 15
194	194	(3) the right to be notified that a sentencing hearing or a court 16
195	195	proceeding to which the victim has been subpoenaed will not occur as scheduled; 17
196	196	(4) the right to receive protection from harm and threats of harm 18
197	197	arising out of cooperation with law enforcement and prosecution efforts and to be 19
198	198	provided with information as to the protection available; 20
199	199	(5) the right to be notified of the procedure to be followed to apply for 21
200	200	and receive any compensation under AS 18.67; 22
201	201	(6) at the request of the prosecution or a law enforcement agency, the 23
202	202	right to cooperate with the criminal justice process without loss of pay and other 24
203	203	employee benefits except as authorized by AS 12.61.017 and without interference in 25
204	204	any form by the employer of the victim of crime; 26
205	205	(7) the right to obtain access to immediate medical assistance and not 27
206	206	to be detained for an unreasonable length of time by a law enforcement agency before 28
207	207	having medical assistance administered; however, an employee of the law 29
208	208	enforcement agency may, if necessary, accompany the person to a medical facility to 30
209	209	question the person about the criminal incident if the questioning does not hinder the 31 33-LS1213\A
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213	213	administration of medical assistance; 1
214	214	(8) the right to make a written or oral statement for use in preparation 2
215	215	of the presentence report of a felony defendant; 3
216	216	(9) the right to appear personally at the defendant's sentencing hearing 4
217	217	to present a written statement and to give sworn testimony or an unsworn oral 5
218	218	presentation; 6
219	219	(10) the right to be informed by the prosecuting attorney, at any time 7
220	220	after the defendant's conviction, about the complete record of the defendant's 8
221	221	convictions; 9
222	222	(11) the right to notice under AS 12.47.095 concerning the status of the 10
223	223	defendant found not guilty by reason of insanity; 11
224	224	(12) the right to notice under AS 33.16.087 of a hearing concerning 12
225	225	special medical parole of the defendant; 13
226	226	(13) the right to notice under AS 33.16.120 of a hearing to consider or 14
227	227	review discretionary parole of the defendant; 15
228	228	(14) the right to notice under AS 33.30.013 of the release or escape of 16
229	229	the defendant; [AND] 17
230	230	(15) the right to be notified orally and in writing of and receive 18
231	231	information about the office of victims' rights from the law enforcement officer 19
232	232	initially investigating the crime and from the prosecuting attorney assigned to the 20
233	233	offense; at a minimum, the information provided must include the address, telephone 21
234	234	number, and Internet address of the office of victims' rights; this paragraph 22
235	235	(A) applies only to victims of felonies and to victims of class A 23
236	236	misdemeanors if the class A misdemeanor is a crime involving domestic 24
237	237	violence or a crime against a person under AS 11.41; if the victim is an 25
238	238	unemancipated minor, the law enforcement officer and the prosecuting 26
239	239	attorney shall also provide the notice required by this paragraph to the parent 27
240	240	or guardian of the minor; 28
241	241	(B) is satisfied if, at the time of initial contact with the crime 29
242	242	victim, the investigating officer and prosecuting attorney each give each crime 30
243	243	victim a brochure or other written material prepared by the office of victims' 31 33-LS1213\A
244	244	HB 379 -8- HB0379a
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247	247	rights and provided to law enforcement agencies for that purpose; and 1
248	248	(16) the right to notice under AS 28.35.043 of a hearing on a 2
249	249	petition for diversion agreement and the right to make a written or oral 3
250	250	statement on the petition. 4
251	251	* Sec. 7. AS 18.85.100(a) is amended to read: 5
252	252	(a) An indigent person who is under formal charge of having committed a 6
253	253	serious crime and the crime has been the subject of an initial appearance or subsequent 7
254	254	proceeding, or is being detained under a conviction of a serious crime, or is on 8
255	255	probation or parole, or is entitled to representation under the Supreme Court 9
256	256	Delinquency or Child in Need of Aid Rules, as a participant in the driving while 10
257	257	under the influence diversion program under AS 28.35.043, or at a review hearing 11
258	258	under AS 47.12.105(d), or is isolated, quarantined, or required to be tested under an 12
259	259	order issued under AS 18.15.355 - 18.15.395, or is a respondent in a proceeding under 13
260	260	AS 47.30, is entitled 14
261	261	(1) to be represented, in connection with the crime or proceeding, by 15
262	262	an attorney to the same extent as a person retaining an attorney is entitled; and 16
263	263	(2) to be provided with the necessary services and facilities of this 17
264	264	representation, including investigation and other preparation. 18
265	265	* Sec. 8. AS 28.15.151(a) is amended to read: 19
266	266	(a) The department shall maintain a file of 20
267	267	(1) every driver's license application, license or permit, and duplicate 21
268	268	driver's license issued by it; 22
269	269	(2) every license that has been suspended, revoked, canceled, limited, 23
270	270	restricted, or denied, and the reasons for those actions; 24
271	271	(3) all accident reports required to be forwarded to the department 25
272	272	under this title; [AND] 26
273	273	(4) every disqualification of an individual from operating a 27
274	274	commercial motor vehicle; and 28
275	275	(5) every diversion agreement entered into by an individual under 29
276	276	AS 28.35.043. 30
277	277	* Sec. 9. AS 28.35.030(b) is amended to read: 31 33-LS1213\A
278	278	HB0379a -9- HB 379
279	279	New Text Underlined [DELETED TEXT BRACKETED]
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281	281	(b) Except as provided under (n) of this section, driving while under the 1
282	282	influence of an alcoholic beverage, inhalant, or controlled substance is a class A 2
283	283	misdemeanor. Upon conviction, 3
284	284	(1) the court shall impose a minimum sentence of imprisonment of 4
285	285	(A) not less than 72 consecutive hours, require the person to 5
286	286	use an ignition interlock device after the person regains the privilege, including 6
287	287	any limited privilege, to operate a motor vehicle for a minimum of six months, 7
288	288	and impose a fine of not less than $1,500 if the person has not been previously 8
289	289	convicted and the person did not complete the driving while under the 9
290	290	influence diversion program under AS 28.35.043; 10
291	291	(B) not less than 20 days, require the person to use an ignition 11
292	292	interlock device after the person regains the privilege, including any limited 12
293	293	privilege, to operate a motor vehicle for a minimum of 12 months, and impose 13
294	294	a fine of not less than $3,000 if the person has been previously convicted once; 14
295	295	(C) not less than 60 days, require the person to use an ignition 15
296	296	interlock device after the person regains the privilege, including any limited 16
297	297	privilege, to operate a motor vehicle for a minimum of 18 months, and impose 17
298	298	a fine of not less than $4,000 if the person has been previously convicted twice 18
299	299	and is not subject to punishment under (n) of this section; 19
300	300	(D) not less than 120 days, require the person to use an ignition 20
301	301	interlock device after the person regains the privilege, including any limited 21
302	302	privilege, to operate a motor vehicle for a minimum of 24 months, and impose 22
303	303	a fine of not less than $5,000 if the person has been previously convicted three 23
304	304	times and is not subject to punishment under (n) of this section; 24
305	305	(E) not less than 240 days, require the person to use an ignition 25
306	306	interlock device after the person regains the privilege, including any limited 26
307	307	privilege, to operate a motor vehicle for a minimum of 30 months, and impose 27
308	308	a fine of not less than $6,000 if the person has been previously convicted four 28
309	309	times and is not subject to punishment under (n) of this section; 29
310	310	(F) not less than 360 days, require the person to use an ignition 30
311	311	interlock device after the person regains the privilege, including any limited 31 33-LS1213\A
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314	314
315	315	privilege, to operate a motor vehicle for a minimum of 36 months, and impose 1
316	316	a fine of not less than $7,000 if the person has been previously convicted more 2
317	317	than four times and is not subject to punishment under (n) of this section; 3
318	318	(2) the court may not 4
319	319	(A) suspend execution of sentence or grant probation except on 5
320	320	condition that the person 6
321	321	(i) serve the minimum imprisonment under (1) of this 7
322	322	subsection; 8
323	323	(ii) pay the minimum fine required under (1) of this 9
324	324	subsection; 10
325	325	(B) suspend imposition of sentence, except for a defendant 11
326	326	who is a participant in the driving while under the influence diversion 12
327	327	program under AS 28.35.043; or 13
328	328	(C) suspend the requirement for an ignition interlock device for 14
329	329	a violation of (a)(1) of this section involving an alcoholic beverage or 15
330	330	intoxicating liquor, singly or in combination, or a violation of (a)(2) of this 16
331	331	section; 17
332	332	(3) the court shall revoke the person's driver's license, privilege to 18
333	333	drive, or privilege to obtain a license under AS 28.15.181, and may order that the 19
334	334	motor vehicle, aircraft, or watercraft that was used in commission of the offense be 20
335	335	forfeited under AS 28.35.036; and 21
336	336	(4) the court may order that the person, while incarcerated or as a 22
337	337	condition of probation or parole, take a drug or combination of drugs intended to 23
338	338	prevent the consumption of an alcoholic beverage; a condition of probation or parole 24
339	339	imposed under this paragraph is in addition to any other condition authorized under 25
340	340	another provision of law. 26
341	341	* Sec. 10. AS 28.35 is amended by adding new sections to read: 27
342	342	Sec. 28.35.043. Driving while under the influence diversion program. (a) 28
343	343	The driving while under the influence diversion program is established in the Alaska 29
344	344	Court System. 30
345	345	(b) At the initial court appearance or arraignment of a person for an offense 31 33-LS1213\A
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349	349	under AS 28.35.030, the court shall inform a defendant charged under AS 28.35.030 1
350	350	that the defendant may be eligible for participation in the driving while under the 2
351	351	influence diversion program. A defendant is eligible if the defendant 3
352	352	(1) has never been convicted under AS 28.35.030 or a similar law in 4
353	353	another jurisdiction; for purposes of this paragraph, a prior conviction does not include 5
354	354	a violation under AS 04.16.050 or a similar law in another jurisdiction; 6
355	355	(2) does not have a pending charge under AS 28.35.030 or a similar 7
356	356	law in another jurisdiction; 8
357	357	(3) was not charged with any other criminal charges in the present 9
358	358	offense and the present offense did not involve an accident resulting in death or in 10
359	359	physical injury to any person other than the defendant; 11
360	360	(4) does not have a pending charge under AS 11.41.100 - 11.41.140 or 12
361	361	AS 11.41.200 - 11.41.230, or a similar law in another jurisdiction, that resulted from 13
362	362	the defendant's operation of a motor vehicle; 14
363	363	(5) at the time of the commission of the present offense, was not 15
364	364	participating in the driving while under the influence diversion program under this 16
365	365	section or in a similar program in another jurisdiction; 17
366	366	(6) has not, within 15 years before the date of the commission of the 18
367	367	present offense, participated in the driving while under the influence diversion 19
368	368	program in this state or a similar program in another jurisdiction; 20
369	369	(7) did not hold a commercial driver's license on the date of the 21
370	370	commission of the present offense; 22
371	371	(8) was not operating a commercial motor vehicle at the time of the 23
372	372	commission of the present offense. 24
373	373	(c) A defendant who is eligible for the driving while under the influence 25
374	374	diversion program shall file a petition and a filing fee in the amount of $490 with the 26
375	375	court to request admittance to the diversion program. The petition shall be filed within 27
376	376	30 days after the date of the defendant's first appearance before a judicial officer, 28
377	377	unless a later filing date is allowed by the court for good cause. For purposes of this 29
378	378	subsection, an objection to the complaint, a motion to suppress, or a motion for an 30
379	379	omnibus hearing do not constitute good cause. A petition may not be filed after entry 31 33-LS1213\A
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382	382
383	383	of a guilty plea or a no contest plea or after the commencement of a trial on the charge. 1
384	384	(d) Notwithstanding (c) of this section, a petition may be filed up to 14 days 2
385	385	after the date the prosecuting attorney sends laboratory test results of the defendant's 3
386	386	urine or blood sample analysis to the defendant's attorney, or to the defendant if the 4
387	387	defendant is unrepresented, if 5
388	388	(1) the charging document alleges the defendant was driving under the 6
389	389	influence of an alcoholic beverage, inhalant, or controlled substance; 7
390	390	(2) the defendant has not received notice of what the defendant's blood 8
391	391	alcohol content was at the time the conduct occurred or if at the time the conduct 9
392	392	occurred the defendant had less than 0.08 percent by weight of alcohol in the blood; 10
393	393	and 11
394	394	(3) a police officer obtained a urine or blood sample from the 12
395	395	defendant. 13
396	396	(e) A petition for admittance into the driving while under the influence 14
397	397	diversion program shall be made using a form prescribed by the Alaska Court System 15
398	398	and made available to a defendant at the initial court appearance or arraignment and 16
399	399	include 17
400	400	(1) a plea of guilty or no contest to the charge of driving while under 18
401	401	the influence of an alcoholic beverage, inhalant, or controlled substance under 19
402	402	AS 28.35.030 signed by the defendant; 20
403	403	(2) a sworn statement by the defendant that the defendant is eligible to 21
404	404	enter into the driving while under the influence diversion program; 22
405	405	(3) an agreement by the defendant to complete a screening interview to 23
406	406	determine the possible existence and degree of an alcohol or substance abuse problem 24
407	407	at an agency or organization designated by the court; 25
408	408	(4) an agreement by the defendant to complete, at the defendant's 26
409	409	expense, the program of treatment indicated necessary by the screening interview 27
410	410	under (3) of this subsection or if, following two negative screening reports of an 28
411	411	alcohol or substance abuse problem, ordered by the court; 29
412	412	(5) an agreement by the defendant not to use alcoholic beverages, 30
413	413	inhalants, or controlled substances during the driving while under the influence 31 33-LS1213\A
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416	416
417	417	diversion program; this agreement does not preclude 1
418	418	(A) the consumption of sacramental wine given or provided as 2
419	419	part of a religious rite or service; 3
420	420	(B) the defendant's use of a prescription drug prescribed for the 4
421	421	defendant if the defendant uses the prescribed drug as directed; 5
422	422	(C) the defendant's use of a nonprescription drug used as 6
423	423	directed on the nonprescription drug's label; 7
424	424	(6) a notice to the defendant that, if the court receives notice during the 8
425	425	course of the diversion program that the defendant committed an offense under 9
426	426	AS 28.35.029 or 28.35.030, the defendant will be in violation of the diversion 10
427	427	agreement; 11
428	428	(7) an agreement by the defendant to keep the court advised of the 12
429	429	defendant's current mailing address during the course of the diversion program; 13
430	430	(8) an acknowledgment by the defendant that failure to complete the 14
431	431	diversion program will result in subsequent action upon the charge or any other 15
432	432	offenses based on the same criminal episode, and that by participation in the diversion 16
433	433	program, the defendant has not been placed in jeopardy for the same offense until 17
434	434	completion of the program and dismissal of the charge with prejudice; 18
435	435	(9) an agreement by the defendant to pay court-appointed attorney fees 19
436	436	as determined by the court before the completion of the diversion program; and 20
437	437	(10) an agreement by the defendant to pay restitution if ordered by the 21
438	438	court, during the diversion period on a schedule determined by the court. 22
439	439	(f) The court may allow installment payments for the filing fee for a petition 23
440	440	under (c) of this section or may waive all or part of the filing fee or court-appointed 24
441	441	attorney fees if a defendant is indigent. 25
442	442	(g) The prosecuting attorney may, within 15 days after the date of service, file 26
443	443	a written objection to the petition and a request for a hearing. 27
444	444	(h) If the commission of the offense resulted in damage to the property of a 28
445	445	person other than the defendant, the victim of the property damage has a right to be 29
446	446	present and heard at any hearing on a petition for diversion. 30
447	447	(i) After the time requested for a hearing has expired or after a hearing 31 33-LS1213\A
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450	450
451	451	requested under (g) of this section has occurred, the court shall determine whether to 1
452	452	grant or deny a petition for admittance into the driving while under the influence 2
453	453	diversion program under this section. In making a determination under this section, the 3
454	454	court 4
455	455	(1) shall consider whether a diversion agreement will benefit the 5
456	456	defendant and the community; 6
457	457	(2) may take into consideration whether 7
458	458	(A) there was an early recognition by the defendant during any 8
459	459	previous court proceedings that a course of diagnosis and treatment of problem 9
460	460	drinking, alcoholism, or substance abuse would be beneficial; 10
461	461	(B) there is reasonable probability that the defendant will 11
462	462	cooperate with the diagnostic assessment and treatment agencies; 12
463	463	(C) the defendant will observe the restrictions contained in the 13
464	464	diversion agreement; 14
465	465	(D) the offense was committed in a motor vehicle and there 15
466	466	was a passenger in the motor vehicle who was under 18 years of age and at 16
467	467	least three years younger than the defendant; 17
468	468	(3) shall deny the petition if 18
469	469	(A) after the date the defendant filed the petition, the defendant 19
470	470	was charged or convicted under AS 28.35.030 or a similar law in another 20
471	471	jurisdiction for a different criminal episode; 21
472	472	(B) the defendant failed to appear at an arraignment on the 22
473	473	present offense without good cause; 23
474	474	(C) after the date the defendant filed the petition, the defendant 24
475	475	participated in the driving while under the influence diversion program or any 25
476	476	similar alcohol or drug rehabilitation program, other than a program entered 26
477	477	into as a result of the charge for the present offense, in this state or in another 27
478	478	jurisdiction; 28
479	479	(D) after the date the defendant filed the petition, the defendant 29
480	480	was charged with or convicted of an offense under AS 11.41.100 - 11.41.230 30
481	481	that resulted from the operation of a motor vehicle in this state or in another 31 33-LS1213\A
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484	484
485	485	jurisdiction; 1
486	486	(E) the defendant has been convicted of a prior offense under 2
487	487	AS 28.35.030; 3
488	488	(4) may not deny the petition because the defendant is a member of the 4
489	489	military and has been called or might be called to active duty and the military service 5
490	490	will impair the defendant's ability to complete the diversion program. 6
491	491	(j) If a court grants a petition for admittance into the driving while under the 7
492	492	influence diversion program, the court shall accept the guilty plea or no contest plea 8
493	493	filed as part of the petition under (e) of this section, but shall withhold entry of a 9
494	494	judgment of conviction. The court shall sign the petition and indicate the date the 10
495	495	diversion period begins and ends and the date on which the driving while under the 11
496	496	influence offense occurred. If the defendant has not already been processed by the 12
497	497	Department of Corrections or a municipal correctional facility on the charge of driving 13
498	498	while under the influence of an alcoholic beverage, inhalant, or controlled substance 14
499	499	under AS 28.35.030, the court shall require the defendant to submit to processing. 15
500	500	(k) The signed and dated petition is the diversion agreement between the 16
501	501	defendant and the court. The court shall make the diversion agreement part of the 17
502	502	record of the case. The court shall notify the Department of Administration of the 18
503	503	diversion agreement within 48 hours after granting the petition. 19
504	504	(l) A diversion agreement shall be for a period of one year after the date the 20
505	505	court grants the petition. During the diversion period, the court shall stay the criminal 21
506	506	offense proceeding pending completion of the diversion agreement or termination of 22
507	507	the diversion agreement. 23
508	508	(m) If the court denies a petition submitted under (e) of this section, the court 24
509	509	shall proceed with the criminal case on the charges brought against the defendant. The 25
510	510	guilty plea or no contest plea filed as part of the petition for admittance into the 26
511	511	driving while under the influence diversion program under (e) of this section may not 27
512	512	be used in the offense proceeding. A statement by the defendant about the offense 28
513	513	made during the course of screening or a treatment program to a person employed by 29
514	514	the treatment program may not be offered or received as evidence in any criminal or 30
515	515	civil action or proceeding arising out of the conduct on which the charge of driving 31 33-LS1213\A
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518	518
519	519	while under the influence of an alcoholic beverage, inhalant, or controlled substance 1
520	520	under AS 28.35.030 is based. 2
521	521	(n) The court may allow a defendant who is an active duty member of the 3
522	522	military to participate in a comparable treatment program conducted by or authorized 4
523	523	by a government entity in another jurisdiction to satisfy a treatment program 5
524	524	requirement as part of the defendant's diversion agreement. 6
525	525	(o) If a victim impact program exists in the community in which the defendant 7
526	526	resides, a court may order the defendant to attend a victim impact treatment session as 8
527	527	part of the defendant's diversion agreement. If the court orders attendance under this 9
528	528	subsection, the court may require the defendant to pay a fee of not less than $5 and not 10
529	529	more than $50 to the victim impact program to offset the cost of the defendant's 11
530	530	participation. 12
531	531	(p) A defendant may file a motion for an extension of the diversion period 13
532	532	within 30 days before the end of the diversion period or, if the defendant is an active 14
533	533	duty member of the military, at any time before the end of the diversion period. 15
534	534	(q) The court may grant a motion for extension of the driving while under the 16
535	535	influence diversion program if the court finds the defendant made a good faith effort 17
536	536	to complete the conditions of the diversion agreement and the defendant is able to 18
537	537	complete the conditions of the diversion agreement within the requested extended 19
538	538	diversion period. Only one extension may be granted for not more than 180 days from 20
539	539	the date the original diversion period ended, unless the defendant is an active duty 21
540	540	member of the military or is a member of the military that has received active duty 22
541	541	orders and the defendant demonstrates the military service will impair the defendant's 23
542	542	ability to complete the conditions of the diversion agreement and no comparable 24
543	543	treatment program is available. 25
544	544	(r) If the court grants a motion for extension, the defendant shall fully comply 26
545	545	with the conditions of the diversion agreement within the extended diversion period. If 27
546	546	the court finds the defendant failed to comply with the diversion agreement within the 28
547	547	extended diversion period, the court shall enter a guilty plea or no contest plea filed as 29
548	548	part of the petition under (e) of this section, shall enter a judgment of conviction, and 30
549	549	shall sentence the defendant.
550	550	31 33-LS1213\A
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554	554	(s) If the court denies a motion for extension, the court shall enter the guilty 1
555	555	plea or no contest plea included in the petition under (e) of this section, shall enter a 2
556	556	judgment of conviction, and shall sentence the defendant. 3
557	557	(t) At any time before the completion of a defendant's diversion period and 4
558	558	dismissal with prejudice, the court may, on its own motion or on the motion of the 5
559	559	prosecuting attorney, issue an order requiring the defendant to appear and show cause 6
560	560	as to why the court should not terminate the diversion agreement. The order to show 7
561	561	cause must 8
562	562	(1) state the reasons for the proposed termination; 9
563	563	(2) specify the amount of any fees owed and, if the amount owed is 10
564	564	$500 or less, inform the defendant that the court may dismiss with prejudice the 11
565	565	charge of driving while under the influence if the person has complied with and 12
566	566	performed all of the conditions of the diversion agreement and pays the remaining 13
567	567	amount before or on the date of the hearing; and 14
568	568	(3) set an appearance date. 15
569	569	(u) At an order to show cause hearing, the court 16
570	570	(1) shall terminate the diversion agreement and 17
571	571	(A) enter the guilty plea or no contest plea that was filed as part 18
572	572	of the petition under (e) of this section if 19
573	573	(i) the defendant fails to appear at a hearing on the order 20
574	574	to show cause; 21
575	575	(ii) the court finds by a preponderance of the evidence 22
576	576	that the defendant no longer qualifies for diversion under the conditions 23
577	577	described in (b) of this section; or 24
578	578	(iii) the court finds by a preponderance of the evidence 25
579	579	that the defendant failed to fulfill the terms of the diversion agreement; 26
580	580	(B) dismiss the charge with prejudice if the defendant has 27
581	581	complied with and performed all of the conditions of the defendant's diversion 28
582	582	agreement, except that the defendant owes $500 or less of the fees required, 29
583	583	and the defendant pays the balance of any fees owed before the hearing; 30
584	584	(2) may not terminate a diversion agreement for failure to pay 31 33-LS1213\A
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587	587
588	588	restitution if the defendant has otherwise complied with and performed all of the 1
589	589	conditions of the diversion agreement. 2
590	590	(v) If the court terminates the diversion agreement, the court may take into 3
591	591	account any time toward partial fulfillment of the diversion agreement by the 4
592	592	defendant at sentencing. 5
593	593	(w) After the conclusion of the defendant's diversion period, a defendant who 6
594	594	has complied with and satisfied the conditions of the diversion agreement may apply 7
595	595	by motion to the court for an order dismissing the charge with prejudice. 8
596	596	(x) If a defendant does not file a motion for dismissal within six months after 9
597	597	the conclusion of the defendant's diversion period, the court may enter an order 10
598	598	dismissing the charge with prejudice if the court finds that the defendant fully 11
599	599	complied with and performed the conditions of the diversion agreement. Before a 12
600	600	court enters an order dismissing the charge with prejudice, the court shall enter a 13
601	601	judgment for any remaining amount of restitution owed by the defendant. 14
602	602	(y) If a defendant is an active duty member of the military or is a member of 15
603	603	the military, the court shall allow the defendant's appearance by telephone or by other 16
604	604	means, if the defendant's military service authorizes the appearance. If the defendant's 17
605	605	military service prohibits the defendant's appearance by telephone or other means and 18
606	606	prohibits the defendant from aiding and assisting the attorney who would appear on 19
607	607	the defendant's behalf, the court shall stay a termination proceeding. 20
608	608	(z) Except as prohibited by federal law or regulation, every provider of a 21
609	609	screening interview and subsequent treatment programs to which persons are ordered 22
610	610	under this section shall supply the judge, prosecutor, defendant, and an agency 23
611	611	involved in the defendant's treatment with information and reports concerning the 24
612	612	defendant's past and present assessment, treatment, and progress. Information 25
613	613	compiled under this subsection is confidential and may only be used in connection 26
614	614	with court proceedings involving the defendant's treatment, including use by a court in 27
615	615	sentencing a person convicted under this section, or by an officer of the court in 28
616	616	preparing a presentence report for the use of the court in sentencing a person convicted 29
617	617	under this section. Monitoring of a defendant's progress under a diversion agreement 30
618	618	shall be the responsibility of the agency or organization that conducted the screening 31 33-LS1213\A
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622	622	interview. The agency or organization shall make a report to the court stating the 1
623	623	defendant's successful completion or failure to complete all or any part of the 2
624	624	treatment program specified by the screening interview. The form of the report shall 3
625	625	be determined by agreement between the court and the agency or organization 4
626	626	performing the screening interview. The court shall make the report of the agency or 5
627	627	organization performing the screening interview that is required by this subsection a 6
628	628	part of the record of the case. 7
629	629	Sec. 28.35.099. Definitions for AS 28.35.029 - 28.35.099. In AS 28.35.029 - 8
630	630	28.35.099, 9
631	631	(1) "alcohol safety action program" means a program for alcohol and 10
632	632	substance abuse screening, referral, and monitoring developed and implemented or 11
633	633	approved by the Department of Health under AS 47.37; 12
634	634	(2) "controlled substance" has the meaning given in AS 28.33.190; 13
635	635	(3) "military" means the armed forces of the United States, the United 14
636	636	States Coast Guard, or the Alaska National Guard. 15
637	637	* Sec. 11. AS 43.23.140(b) is amended to read: 16
638	638	(b) An exemption is not available under this section for permanent fund 17
639	639	dividends taken to satisfy 18
640	640	(1) child support obligations required by court order or decision of the 19
641	641	child support services agency under AS 25.27.140 - 25.27.220; 20
642	642	(2) court ordered restitution under AS 12.55.045 - 12.55.051, 21
643	643	12.55.100, AS 28.35.043, or AS 47.12.120(b)(4); 22
644	644	(3) claims on defaulted education loans under AS 43.23.160; 23
645	645	(4) court ordered fines; 24
646	646	(5) writs of execution under AS 09.35 of a judgment that is entered 25
647	647	(A) against a minor in a civil action to recover damages and 26
648	648	court costs; 27
649	649	(B) under AS 09.65.255 against the parent, parents, or legal 28
650	650	guardian of an unemancipated minor; 29
651	651	(6) a debt owed by an eligible individual to an agency of the state, 30
652	652	including the University of Alaska, unless the debt is contested and an appeal is 31 33-LS1213\A
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655	655
656	656	pending, or the time limit for filing an appeal has not expired; 1
657	657	(7) a debt owed to a person for a program for the rehabilitation of 2
658	658	perpetrators of domestic violence required under AS 12.55.101, AS 18.66.100(c)(15), 3
659	659	AS 25.20.061(3), or AS 33.16.150(f)(2); 4
660	660	(8) a judgment for unpaid rent or damage owed to a landlord by an 5
661	661	eligible individual that was a tenant of the landlord; in this paragraph, "tenant" has the 6
662	662	meaning given in AS 34.03.360; 7
663	663	(9) court-ordered forfeiture of an appearance or performance bond 8
664	664	under AS 12.30.075. 9
665	665	* Sec. 12. AS 47.37.210(a) is amended to read: 10
666	666	(a) Except as required by AS 28.35.030(d) or 28.35.043(z), the registration 11
667	667	and other records of treatment facilities shall remain confidential and are privileged to 12
668	668	the patient. 13
669	669	* Sec. 13. AS 28.35.039 is repealed. 14
670	670	* Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to 15
671	671	read: 16
672	672	INDIRECT COURT RULE AMENDMENT. (a) AS 18.85.100(a), as amended by sec. 17
673	673	7 of this Act, has the effect of changing Rule 39, Alaska Rules of Criminal Procedure, by 18
674	674	authorizing court-appointed counsel to a defendant who is participating in the driving while 19
675	675	under the influence diversion program under AS 28.35.043, enacted by sec. 10 of this Act. 20
676	676	(b) AS 28.35.043, enacted by sec. 10 of this Act, has the effect of changing Rule 9, 21
677	677	Alaska Rules of Administration, by setting a filing fee amount for participation in the driving 22
678	678	while under the influence diversion program. 23
679	679	* Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to 24
680	680	read: 25
681	681	APPLICABILITY. Rule 9, Alaska Rules of Administration, as amended by sec. 14 of 26
682	682	this Act, takes effect only if sec. 14 of this Act receives the two-thirds majority vote of each 27
683	683	house required by art. IV, sec. 15, Constitution of the State of Alaska. 28
684	684	* Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 29
685	685	read: 30
686	686	TRANSITION: REGULATIONS. The Department of Administration may adopt 31 33-LS1213\A
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688	688	New Text Underlined [DELETED TEXT BRACKETED]
689	689
690	690	regulations necessary to implement the changes made by this Act. The regulations take effect 1
691	691	under AS 44.62 (Administrative Procedure Act), but not before the effective date of the law 2
692	692	implemented by the regulation. 3
693	693	* Sec. 17. Section 16 of this Act takes effect immediately under AS 01.10.070(c). 4
694	694	* Sec. 18. Except as provided in sec. 17 of this Act, this Act takes effect July 1, 2024. 5