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HOUSE BILL NO. 2
IN THE LEGISLATURE OF THE STATE OF ALASKA
THIRTY-FOURTH LEGISLATURE - FIRST SESSION
BY REPRESENTATIVES PRAX, Carrick
Introduced: 1/22/25
Referred: State Affairs, Judiciary
A BILL
FOR AN ACT ENTITLED
"An Act establishing the driving while under the influence dive rsion program for 1
eligible persons charged with driving while under the influence or refusal to submit to a 2
chemical test; relating to judgment for restitution; relating t o suspended imposition of 3
sentence; relating to records kept by the Department of Adminis tration; relating to 4
operating a vehicle, aircraft, or watercraft while under the in fluence of an alcoholic 5
beverage, inhalant, or controlled substance; relating to refusa l to submit to a chemical 6
test; amending Rule 9, Alaska Rules of Administration, and Rule 39, Alaska Rules of 7
Criminal Procedure; and providing for an effective date." 8
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 9
* Section 1. AS 04.16.160(a) is amended to read: 10
(a) Except as otherwise provided by law, a person who is 21 ye ars of age or 11
older may not purchase alcoholic beverages if the person has be en ordered to refrain 12
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from consuming alcoholic beverages under AS 12.55.015(a)(13) or a s p a r t o f a 1
sentence for conviction of a crime under AS 28.35.030, 28.35.03 2, or a similar 2
municipal ordinance, as part of the driving while under the influence diversion 3
program under AS 28.35.043, as a condition of probation or parole from a conviction 4
under AS 28.35.030, 28.35.032, or a similar municipal ordinance , or as a condition of 5
probation or parole for any othe r crime. The restriction on pur chasing alcoholic 6
beverages applies during the peri od that the person is required to refrain from 7
consuming alcoholic beverages under the sentence or condition of probation or parole. 8
* Sec. 2. AS 09.38.500(8) is amended to read: 9
(8) "judgment of restitution" 10
(A) includes restitution ordered 11
(i) under AS 47.12.120 that is considered as a civil 12
judgment enforceable by execution under AS 47.12.170; [AND] 13
(ii) as part of a sentence under AS 12.55.025(f) that is 14
considered as a judgment for money entered in a civil action; and 15
(iii) as part of the diversion agreement under 16
AS 28.35.043; 17
(B) does not include a judgment for 18
(i) civil damages for torts under state law; or 19
(ii) restitution as a result of a violation of state law that 20
is not a felony or misdemeanor; 21
* Sec. 3. AS 12.55.039(b) is amended to read: 22
(b) A court may not fail to impose the surcharge required unde r this section. 23
The surcharge may not be waived, deferred, or suspended , unless the defendant is a 24
participant in the driving while under the influence diversion program under 25
AS 28.35.043. A court may allow a defendant who is unable to pay the surcha rge 26
required to be imposed under this section to perform community work under 27
AS 12.55.055(c) in lieu of the surcharge. 28
* Sec. 4. AS 12.55.078(a) is amended to read: 29
(a) Except as provided in AS 28.35.043 or (f) of this section, if a person is 30
found guilty or pleads guilty to a crime, the court may, with t he consent of the 31
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defendant and the prosecution and without imposing or entering a judgment of guilt, 1
defer further proceedings and place the person on probation. Th e period of probation 2
may not exceed the applicable terms set out in AS 12.55.090(c). The court may not 3
impose a sentence of imprisonment under this subsection. 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 t h e s a f e ty o r w e l l -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 d uress, 14
coercion, threat, or compulsion insufficient to constitute a co mplete 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 defe ndant was substantially a produ ct 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 be en 25
discovered, the defendant fully c ompensated or made a good fait h effort to fully 26
compensate the victim of the def endant's criminal conduct for a ny damage or injury 27
sustained; 28
(9) the conduct constituting the offense was among the least s erious 29
conduct included in the definition of the offense; 30
(10) the defendant was motivated to commit the offense solely by an 31
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overwhelming compulsion to provide for emergency necessities fo r the defendant's 1
immediate family; 2
(11) after commission of the offe nse for which the defendant i s being 3
sentenced, the defendant assisted authorities to detect, appreh end, or prosecute other 4
persons who committed an offense; 5
(12) the facts surrounding the c ommission of the offense and a ny 6
previous offenses by the defendant establish that the harm caus ed by the defendant's 7
conduct is consistently minor and inconsistent with the imposit ion 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 distri bution of a controlled substance , other than a schedule 13
IA controlled substance, to a personal acquaintance who is 19 y ears 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 cont rolled substance for 17
personal use in the defendant's home; 18
(16) in a conviction for assau lt or attempted assault or for homicide or 19
attempted homicide, the defenda nt acted in response to domestic violence perpetrated 20
by the victim against the defendant and the domestic violence c onsisted 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 successful ly 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 o r 27
AS 11.46.400 or a defendant who has previously been convicted o f a felony, the 28
defendant committed the offense while suffering from a mental d i s e a s e o r d e f e c t a s 29
defined in AS 12.47.130 that was insufficient to constitute a c omplete defense but that 30
significantly affected the defendant's conduct; 31
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(19) the defendant is convicted of an offense under AS 11.71, and the 1
defendant sought medical assist ance 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 o r 4
AS 11.46.400, the defendant committed the offense while sufferi ng from a condition 5
diagnosed 6
(A) as a fetal alcohol spectru m disorder, the fetal alcohol 7
spectrum disorder substantially impaired the defendant's judgme nt, behavior, 8
capacity to recognize reality, or ability to cope with the ordi nary demands of 9
life, and the fetal alcohol spectrum disorder, though insuffici ent to constitute a 10
complete defense, significantly affected the defendant's conduc t; in this 11
subparagraph, "fetal alcohol spectrum disorder" means a condition of impaired 12
brain function in the range of pe rmanent birth defects caused b y 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 t o 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 t o constitute a 20
complete defense, significantly affected the defendant's conduc t; 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 th e United 25
States; nothing in this subparagraph is intended to limit the a pplication 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 monitorin g program 30
established under AS 47.38.020; 31
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( B ) s u c c e s s f u l l y c o m p l e t e d t h e d r i v i n g w h i l e u n d e r t h e 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 sent encing of a defendant if the 6
defendant has the right to be pre sent, 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 enforcemen t agency 11
or the prosecuting attorney of any request for a continuance th at may substantially 12
delay the prosecution and of the date of trial, sentencing, inc luding a proceeding 13
before a three-judge panel under AS 12.55.175, an appeal, and a ny hearing in which 14
the defendant's release from custody is considered; 15
(3) the right to be notified th at a sentencing hearing or a co urt 16
proceeding to which the victim has been subpoenaed will not occur as scheduled; 17
( 4 ) t h e r i g h t t o r e c e i v e p r o t e c t i o n f r o m h a r m a n d t h r e a t s o f 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 t o apply for 21
and receive any compensation under AS 18.67; 22
(6) at the request of the prosecution or a law enforcement age ncy, the 23
right to cooperate with the crimin al justice process without lo ss of pay and other 24
employee benefits except as authorized by AS 12.61.017 and with out 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 enfo rcement agency before 28
having medical assistance administered; however, an employee of t h e l a w 29
enforcement agency may, if necessary, accompany the person to a medical facility to 30
question the person about the criminal incident if the question ing does not hinder the 31
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administration of medical assistance; 1
(8) the right to make a written or oral statement for use in p reparation 2
of the presentence report of a felony defendant; 3
(9) the right to appear persona lly at the defendant's sentenci ng hearing 4
to present a written statement and to give sworn testimony or a n unsworn oral 5
presentation; 6
(10) the right to be informed by the prosecuting attorney, at any time 7
after the defendant's convicti on, 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 conce rning 12
special medical parole of the defendant; 13
(13) the right to notice under AS 33.16.120 of a hearing to co nsider 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 rec eive 18
information about the office of victims' rights from the law en forcement officer 19
initially investigating the crime and from the prosecuting atto r n e y a s s i g n e d t o t h e 20
offense; at a minimum, the infor mation provided must include th e 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 clas s A 23
misdemeanors if the class A misde meanor is a crime involving do mestic 24
violence or a crime against a person under AS 11.41; if the vic tim is an 25
unemancipated minor, the law enforcement officer and the prosec uting 26
attorney shall also provide the notice required by this paragra ph to the parent 27
or guardian of the minor; 28
(B) is satisfied if, at the time of initial contact with the c rime 29
victim, the investigating officer and prosecuting attorney each give each crime 30
victim a brochure or other written material prepared by the off ice of victims' 31
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rights and provided to law enforcement agencies for that purpose; and 1
(16) the right to notice und er AS 28.35.043 of a hearing on a 2
petition for diversion agreement and the right to make a writte n 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 co mmitted 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 seriou s crime, or is on 8
probation or parole, or is entitle d 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 div ersion program under AS 28.35.043, or at a review hearing 11
under AS 47.12.105(d), or is isolate d, 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 connec tion with the crime or proceed ing, 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 b een 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 depar tment 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 un der 29
AS 28.35.043. 30
* Sec. 9. AS 28.35.030(b) is amended to read: 31
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(b) Except as provided under (n) of this section, driving whil e under the 1
influence of an alcoholic beverage, inhalant, or controlled sub stance 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, requi re the person to use an igniti on 11
interlock device after the person regains the privilege, includ ing any limited 12
privilege, to operate a motor vehicle for a minimum of 12 month s, 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, requi re the person to use an igniti on 15
interlock device after the person regains the privilege, includ ing any limited 16
privilege, to operate a motor vehicle for a minimum of 18 month s, and impose 17
a fine of not less than $4,000 if the person has been previousl y 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 ignit ion 20
interlock device after the person regains the privilege, includ ing any limited 21
privilege, to operate a motor vehicle for a minimum of 24 month s, and impose 22
a fine of not less than $5,000 if the person has been previousl y 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 ignit ion 25
interlock device after the person regains the privilege, includ ing any limited 26
privilege, to operate a motor vehicle for a minimum of 30 month s, and impose 27
a fine of not less than $6,000 if the person has been previousl y convicted four 28
times and is not subject to punishment under (n) of this section; 29
(F) not less than 360 days, requi re the person to use an ignit ion 30
interlock device after the person regains the privilege, includ ing any limited 31
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privilege, to operate a motor vehicle for a minimum of 36 month s, and impose 1
a fine of not less than $7,000 if the person has been previousl y 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; or 11
(C) suspend the requirement for an ignition interlock device for 12
a violation of (a)(1) of this section involving an alcoholic be verage or 13
intoxicating liquor, singly or in combination, or a violation o f (a)(2) of this 14
section; 15
(3) the court shall revoke the p erson's driver's license, priv ilege to 16
drive, or privilege to obtain a license under AS 28.15.181, and m a y o r d e r t h a t t h e 17
motor vehicle, aircraft, or watercraft that was used in commiss ion of the offense be 18
forfeited under AS 28.35.036; and 19
(4) the court may order that t he person, while incarcerated or a s a 20
condition of probation or parole, take a drug or combination of drugs intended to 21
prevent the consumption of an alcoholic beverage; a condition o f probation or parole 22
imposed under this paragraph is in addition to any other condit ion authorized under 23
another provision of law. 24
* Sec. 10. AS 28.35.032(g) is amended to read: 25
(g) Upon conviction under this section, 26
(1) the court shall impose a minimum sentence of imprisonment of 27
(A) not less than 72 consecutive hours, require the person to 28
use an ignition interlock device after the person regains the privilege to operate 29
a motor vehicle for a minimum of six months, and impose a fine of not less 30
than $1,500 if the person has not been previously convicted and the person 31
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did not complete the driving while under the influence diversio n program 1
under AS 28.35.043; 2
(B) not less than 20 days, requi re the person to use an igniti on 3
interlock device after the pers on regains the privilege to oper ate a motor 4
vehicle for a minimum of 12 months, and impose a fine of not less than $3,000 5
if the person has been previously convicted once; 6
(C) not less than 60 days, requi re the person to use an igniti on 7
interlock device after the pers on regains the privilege to oper ate a motor 8
vehicle for a minimum of 18 months, and impose a fine of not less than $4,000 9
if the person has been previous ly convicted twice and is not su bject to 10
punishment under (p) of this section; 11
(D) not less than 120 days, require the person to use an ignit ion 12
interlock device after the pers on regains the privilege to oper ate a motor 13
vehicle for a minimum of 24 months, and impose a fine of not less than $5,000 14
if the person has been previous ly convicted three times and is not subject to 15
punishment under (p) of this section; 16
(E) not less than 240 days, require the person to use an ignit ion 17
interlock device after the pers on regains the privilege to oper ate a motor 18
vehicle for a minimum of 30 months, and impose a fine of not less than $6,000 19
if the person has been previous ly convicted four times and is n ot subject to 20
punishment under (p) of this section; 21
(F) not less than 360 days, requi re the person to use an ignit ion 22
interlock device after the pers on regains the privilege to oper ate a motor 23
vehicle for a minimum of 36 months, and impose a fine of not less than $7,000 24
if the person has been previously convicted more than four time s and is not 25
subject to punishment under (p) of this section; 26
(2) the court may not 27
(A) suspend execution of the sentence required by (1) of this 28
subsection or grant probation, except on condition that the person 29
(i) serve the minimum imprisonment under (1) of this 30
subsection; 31
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(ii) pay the minimum fine required under (1) of this 1
subsection; 2
(B) suspend imposition of sentence , except for a person who 3
is a participant in the driving while under the influence diversion program 4
under AS 28.35.043; or 5
(C) suspend the requirement for an ignition interlock device; 6
(3) the court shall revoke the p erson's driver's license, priv ilege to 7
drive, or privilege to obtain a license under AS 28.15.181, and m a y o r d e r t h a t t h e 8
motor vehicle, aircraft, or watercraft that was used in commiss ion of the offense be 9
forfeited under AS 28.35.036; 10
(4) the court may order that t he person, while incarcerated or a s a 11
condition of probation or parole, take a drug or combination of drugs intended to 12
prevent the consumption of an alcoholic beverage; a condition o f probation or parole 13
imposed under this paragraph is in addition to any other condit ion authorized under 14
another provision of law; and 15
(5) the sentence imposed by the court under this subsection sh all run 16
consecutively with any other sentence of imprisonment imposed on the person. 17
* Sec. 11. AS 28.35 is amended by adding new sections to read: 18
Sec. 28.35.043. Driving while under th e influence diversion pro gram. ( a ) 19
The driving while under the influence diversion program is esta blished in the Alaska 20
Court System. 21
(b) At the initial court appearance or arraignment of a person for an offense 22
under AS 28.35.030 or 28.35.032, the court shall inform a defen dant charged under 23
AS 28.35.030 or 28.35.032 that the defendant may be eligible fo r participation in the 24
driving while under the influence diversion program. A defendan t is eligible if the 25
defendant 26
(1) has never been convicted under AS 28.35.030, 28.35.032, or a 27
similar law in another jurisdiction; for purposes of this parag raph, a prior conviction 28
does not include a violati on under AS 04.16.050 or a similar la w in another 29
jurisdiction; 30
(2) does not have a pending charge under AS 28.35.030, 28.35.0 32, or 31
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a similar law in another jurisdiction; 1
(3) was not charged with any other criminal charges in the pre sent 2
offense and the present offens e did not involve an accident res ulting in death or in 3
physical injury to any person other than the defendant; 4
(4) does not have a pending charge under AS 11.41.100 - 11.41. 140 or 5
AS 11.41.200 - 11.41.230, or a similar law in another jurisdict ion, that resulted from 6
the defendant's operation of a motor vehicle; 7
(5) at the time of the commission of the present offense, was not 8
participating in the driving wh ile under the influence diversio n program under this 9
section or in a similar program in another jurisdiction; 10
(6) has not, within 15 years before the date of the commission of the 11
present offense, participated in the driving while under the in fluence diversion 12
program in this state or a similar program in another jurisdiction; 13
(7) did not hold a commercial driver's license on the date of the 14
commission of the present offense; 15
(8) was not operating a commercial motor vehicle at the time o f the 16
commission of the present offense. 17
(c) A defendant who is eligible for the driving while under th e influence 18
diversion program shall file a petition and a filing fee in the amount of $490 with the 19
court to request admittance to the diversion program. The petit ion shall be filed within 20
30 days after the date of the defendant's first appearance befo r e a j u d i c i a l o f f i c e r , 21
unless a later filing date is a llowed by the court for good cau se. For purposes of this 22
subsection, an objection to the complaint, a motion to suppress , or a motion for an 23
omnibus hearing do not constitute good cause. A petition may no t be filed after entry 24
of a guilty plea or a no contest plea or after the commencement of a trial on the charge. 25
(d) Notwithstanding (c) of this section, a petition may be fil ed up to 14 days 26
after the date the prosecuting attorney sends laboratory test r esults of the defendant's 27
urine or blood sample analysis to the defendant's attorney, or to the defendant if the 28
defendant is unrepresented, if 29
(1) the charging document alle ges the defendant was driving un der the 30
influence of an alcoholic beverage, inhalant, or controlled substance; 31
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(2) the defendant has not received notice of what the defendan t's blood 1
alcohol content was at the time the conduct occurred or if at t he time the conduct 2
occurred the defendant had less than 0.08 percent by weight of alcohol in the blood; 3
and 4
(3) a police officer obtained a urine or blood sample from the 5
defendant. 6
(e) A petition for admittance into the driving while under the influence 7
diversion program shall be made us ing a form prescribed by the Alaska Court System 8
and made available to a defendant at the initial court appearan ce or arraignment and 9
include 10
(1) a plea of guilty or no contest to the charge of 11
(A) driving while under the influence of an alcoholic beverage , 12
inhalant, or controlled substance under AS 28.35.030, signed by the defendant; 13
or 14
(B) refusal to submit to a chemical test under AS 28.35.032, 15
signed by the defendant; 16
(2) a sworn statement by the defendant that the defendant is e ligible to 17
enter into the driving while under the influence diversion program; 18
(3) an agreement by the defendant to complete a screening interview to 19
determine the possible existence and degree of an alcohol or su bstance abuse problem 20
at an agency or organization designated by the court; 21
(4) an agreement by the defendant to complete, at the defendan t's 22
expense, the program of treatment indicated necessary by the sc reening interview 23
under (3) of this subsection or if, following two negative scre ening reports of an 24
alcohol or substance abuse problem, ordered by the court; 25
(5) an agreement by the defendant not to use alcoholic beverag es, 26
inhalants, or controlled substances during the driving while un der the influence 27
diversion program; this agreement does not preclude 28
(A) the consumption of sacramental wine given or provided as 29
part of a religious rite or service; 30
(B) the defendant's use of a prescription drug prescribed for the 31
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defendant if the defendant uses the prescribed drug as directed; 1
(C) the defendant's use of a nonprescription drug used as 2
directed on the nonprescription drug's label; 3
(6) a notice to the defendant that, if the court receives notice during the 4
course of the diversion program that the defendant committed an offense under 5
AS 28.35.029, 28.35.030, or 28.35.032, the defendant will be in violation of the 6
diversion agreement; 7
(7) an agreement by the defendant to keep the court advised of the 8
defendant's current mailing address during the course of the diversion program; 9
(8) an acknowledgment by the defe ndant that failure to complet e the 10
diversion program will result in subsequent action upon the cha rge, or may result in 11
the filing of other charges based on the same criminal episode, and that by 12
participation in the diversion pr ogram, the defendant has not b een placed in jeopardy 13
for the same offense until completion of the program and dismis sal of the charge with 14
prejudice; 15
(9) an agreement by the defendant to pay court-appointed attor ney fees 16
as determined by the court before the completion of the diversion program; and 17
(10) an agreement by the defenda nt to pay restitution if order ed by the 18
court, during the diversion period on a schedule determined by the court. 19
(f) The court may allow installment payments for the filing fe e for a petition 20
under (c) of this section or may waive all or part of the filin g fee or court-appointed 21
attorney fees if a defendant is indigent. 22
(g) The prosecuting attorney may, within 15 days after the dat e of service, file 23
a written objection to the petition and a request for a hearing. 24
(h) If the commission of the offense resulted in damage to the property of a 25
person other than the defendant, the victim of the property dam age has a right to be 26
present and heard at any hearing on a petition for diversion. 27
(i) After the time requested for a hearing has expired or afte r a hearing 28
requested under (g) of this sec tion has occurred, the court sha ll determine whether to 29
grant or deny a petition for admittance into the driving while under the influence 30
diversion program under this section. In making a determination under this section, the 31
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court 1
(1) shall consider whether a diversion agreement will benefit the 2
defendant and the community; 3
(2) may take into consideration whether 4
(A) there was an early recognition by the defendant during any 5
previous court proceedings that a course of diagnosis and treat ment of problem 6
drinking, alcoholism, or substance abuse would be beneficial; 7
(B) there is reasonable probability that the defendant will 8
cooperate with the diagnostic assessment and treatment agencies; 9
(C) the defendant will observe the restrictions contained in t he 10
diversion agreement; 11
(D) the offense was committed in a motor vehicle and there 12
was a passenger in the motor ve hicle who was under 18 years of age and at 13
least three years younger than the defendant; 14
(3) shall deny the petition if 15
(A) after the date the defenda nt filed the petition, the defendant 16
was charged or convicted under AS 28.35.030, 28.35.032, or a si milar law in 17
another jurisdiction for a different criminal episode; 18
(B) the defendant failed to appear at an arraignment on the 19
present offense without good cause; 20
(C) after the date the defenda nt filed the petition, the defen dant 21
entered into the driving while under the influence diversion pr ogram or any 22
similar court-ordered alcohol o r drug rehabilitation program, o ther than a 23
program entered into as a result of the charge for the present offense, in this 24
state or in another jurisdiction; 25
(D) after the date the defenda nt filed the petition, the defendant 26
was charged with or convicted of an offense under AS 11.41.100 - 11.41.230 27
that resulted from the operation of a motor vehicle in this sta te or in another 28
jurisdiction; 29
(E) the defendant has been convi cted of a prior offense under 30
AS 28.35.030 or 28.35.032; 31
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(4) may not deny the petition because the defendant is a member of the 1
military and has been called or might be called to active duty and the military service 2
will impair the defendant's ability to complete the diversion program; 3
(5) may not deny the petition because the defendant has sought out or 4
entered into a treatment program that is not court-ordered, bef ore the court issues a 5
decision on the petition, or because the defendant has particip ated in court-ordered 6
treatment in another case. 7
(j) If a court grants a petition for admittance into the drivi ng while under the 8
influence diversion program, the court shall accept the guilty plea or no contest plea 9
filed as part of the petition unde r (e) of this section, but sh all withhold entry of a 10
judgment of conviction. The cour t shall sign the petition and i ndicate the date the 11
diversion period begins and ends and the date on which the driv ing while under the 12
influence offense occurred. A diversion agreement shall be for a period of one year 13
after the date the court grant s the petition. During the divers ion period, the court shall 14
stay further criminal offense proceedings pending completion of the diversion 15
agreement or termination of the diversion agreement. If the def endant has not already 16
been processed by the Department of Corrections or a municipal correctional facility 17
on the charge of driving while under the influence of an alcoho lic beverage, inhalant, 18
or controlled substance under AS 28.35.030 or refusal to submit to a chemical test 19
under AS 28.35.032, the court shall require the defendant to submit to processing. 20
(k) The signed and dated petition is the diversion agreement b etween the 21
defendant and the court. The cour t shall make the diversion agr eement part of the 22
record of the case. The court shall notify the Department of Ad ministration of the 23
diversion agreement within 48 hours after granting the petition. 24
(l) If the court denies a petiti on submitted under (e) of this s ection, the court 25
shall proceed with the criminal case on the charges brought aga inst the defendant. The 26
guilty plea or no contest plea filed as part of the petition fo r admittance into the 27
driving while under the influen ce diversion program under (e) o f this section may not 28
be used in the offense proceeding. A statement by the defendant about the offense 29
made during the course of screening or a treatment program to a person employed by 30
the treatment program may not be offered or received as evidenc e in any criminal or 31
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civil action or proceeding arising out of the conduct on which the charge of driving 1
while under the influence of an alcoholic beverage, inhalant, o r controlled substance 2
under AS 28.35.030, or the charge of refusal to submit to a che mical test under 3
AS 28.35.032, is based. 4
(m) The court may allow a defendant who is an active duty memb er of the 5
military to participate in a com parable treatment program condu cted by or authorized 6
by a government entity in another jurisdiction to satisfy a tre atment program 7
requirement as part of the defendant's diversion agreement. 8
(n) If a victim impact program exists in the community in which the defendant 9
resides, a court may order the defendant to attend a victim imp act treatment session as 10
part of the defendant's diversion agreement. If the court order s attendance under this 11
subsection, the court may require the defendant to pay a fee of not less than $5 and not 12
more than $50 to the victim impact program to offset the cost o f the defendant's 13
participation. 14
(o) A defendant may file a motion for an extension of the dive rsion period 15
within 30 days before the end of the diversion period or, if th e defendant is an active 16
duty member of the military, at any time before the end of the diversion period. 17
(p) The court may grant a motion for extension of the driving while under the 18
influence diversion program if t he court finds the defendant ma de a good faith effort 19
to complete the conditions of the diversion agreement and the d efendant is able to 20
complete the conditions of the diversion agreement within the r equested extended 21
diversion period. Only one extension may be granted for not mor e than 180 days from 22
the date the original diversi on period ended, unless the defend ant is an active duty 23
member of the military or is a member of the military that has received active duty 24
orders and the defendant demonstrates the military service will impair the defendant's 25
ability to complete the conditions of the diversion agreement a nd no comparable 26
treatment program is available. 27
(q) If the court grants a motion for extension, the defendant shall fully comply 28
with the conditions of the diversion agreement within the extended diversion period. If 29
the court finds the defendant fa iled to comply with the diversi on agreement within the 30
extended diversion period, the court shall enter a guilty plea or no contest plea filed as 31
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part of the petition under (e) of t his section, shall enter a j udgment of conviction, and 1
shall sentence the defendant. 2
(r) If the court denies a motion for extension, the court shal l enter the guilty 3
plea or no contest plea included in the petition under (e) of t his section, shall enter a 4
judgment of conviction, and shall sentence the defendant. 5
(s) At any time before the completion of a defendant's diversi on period and 6
dismissal with prejudice, the c ourt may, on its own motion or o n the motion of the 7
prosecuting attorney, issue an order requiring the defendant to appear and show cause 8
as to why the court should not terminate the diversion agreemen t. The order to show 9
cause must 10
(1) state the reasons for the proposed termination; 11
(2) specify the amount of any fees owed and, if the amount owe d is 12
$500 or less, inform the defendant that the court may dismiss w ith prejudice the 13
charge of driving while under the influence if the person has c omplied with and 14
performed all of the conditions of the diversion agreement and pays the remaining 15
amount before or on the date of the hearing; and 16
(3) set an appearance date. 17
(t) At an order to show cause hearing, the court 18
(1) shall terminate the diversion agreement and 19
(A) enter the guilty plea or no contest plea that was filed as part 20
of the petition under (e) of this section if 21
(i) the defendant fails to appear at a hearing on the order 22
to show cause; 23
(ii) the court finds by a pr eponderance of the evidence 24
that the defendant no longer qualifies for diversion under the conditions 25
described in (b) of this section; or 26
(iii) the court finds by a pr eponderance of the evidence 27
that the defendant failed to fulfill the terms of the diversion agreement; 28
(B) dismiss the charge with prejudice if the defendant has 29
complied with and performed all of the conditions of the defend ant's diversion 30
agreement, except that the defendant owes $500 or less of the f ees required, 31
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and the defendant pays the balance of any fees owed before the hearing; 1
(2) may not terminate a diversion agreement for failure to pay 2
restitution if the defendant has otherwise complied with and pe rformed all of the 3
conditions of the diversion agreement. 4
(u) If the court terminates the diversion agreement, the court m ay ta k e i n t o 5
account any time toward partial fulfillment of the diversion ag reement by the 6
defendant at sentencing. 7
(v) After the conclusion of the defendant's diversion period, a defendant who 8
has complied with and satisfied the conditions of the diversion agreement may apply 9
by motion to the court for an order dismissing the charge with prejudice. 10
(w) If a defendant does not file a motion for dismissal within six months after 11
the conclusion of the defendant 's diversion period, the court m ay enter an order 12
dismissing the charge with pre judice if the court finds that th e defendant fully 13
complied with and performed the conditions of the diversion agr eement. Before a 14
court enters an order dismissing the charge with prejudice, the court shall enter a 15
judgment for any remaining amount of restitution owed by the defendant. 16
(x) If a defendant is an active duty member of the military or is a member of 17
the military, the court shall allow the defendant's appearance by telephone or by other 18
means, if the defendant's military service authorizes the appea rance. If the defendant's 19
military service prohibits the defendant's appearance by teleph one or other means and 20
prohibits the defendant from aiding and assisting the attorney who would appear on 21
the defendant's behalf, the court shall stay a termination proceeding. 22
(y) Except as prohibited by federal law or regulation, every p rovider of a 23
screening interview and subseque nt treatment programs to which persons are ordered 24
under this section shall supply the judge, prosecutor, defendan t, and an agency 25
involved in the defendant's tr eatment with information and repo rts concerning the 26
defendant's past and present asse ssment, treatment, and progres s. Information 27
compiled under this subsection is confidential and may only be used in connection 28
with court proceedings involving the defendant's treatment, including use by a court in 29
sentencing a person convicted under this section, or by an offi cer of the court in 30
preparing a presentence report for the use of the court in sentencing a person convicted 31
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under this section. Monitoring of a defendant's progress under a diversion agreement 1
shall be the responsibility of the agency or organization that conducted the screening 2
interview. The agency or organization shall make a report to th e court stating the 3
defendant's successful completi on or failure to complete all or any part of the 4
treatment program specified by the screening interview. The for m of the report shall 5
be determined by agreement between the court and the agency or organization 6
performing the screening interview. The court shall make the re port of the agency or 7
organization performing the screening interview that is require d by this subsection a 8
part of the record of the case. 9
Sec. 28.35.099. Definitions. In AS 28.35.029 - 28.35.099, 10
(1) "alcohol safety action program" means a program for alcoho l and 11
substance abuse screening, refe rral, and monitoring developed a nd implemented or 12
approved by the Department of Health under AS 47.37; 13
(2) "controlled substance" has the meaning given in AS 28.33.190; 14
(3) "military" means the armed forces of the United States, th e United 15
States Coast Guard, or the Alaska National Guard. 16
* Sec. 12. AS 43.23.140(b) is amended to read: 17
(b) An exemption is not availa ble under this section for perma nent fund 18
dividends taken to satisfy 19
(1) child support obligations re quired by court order or decis ion of the 20
child support services agency under AS 25.27.140 - 25.27.220; 21
(2) court ordered restitution under AS 12.55.045 - 12.55.051, 22
12.55.100, AS 28.35.043, or AS 47.12.120(b)(4); 23
(3) claims on defaulted education loans under AS 43.23.160; 24
(4) court ordered fines; 25
(5) writs of execution under AS 09.35 of a judgment that is entered 26
(A) against a minor in a civil action to recover damages and 27
court costs; 28
(B) under AS 09.65.255 against the parent, parents, or legal 29
guardian of an unemancipated minor; 30
( 6 ) a d e b t o w e d b y a n e l i g i b l e i n d i v i d u a l t o a n a g e n c y o f t h e state, 31
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including the University of Alaska, unless the debt is conteste d and an appeal is 1
pending, or the time limit for filing an appeal has not expired; 2
(7) a debt owed to a person for a program for the rehabilitati on of 3
perpetrators of domestic violence required under AS 12.55.101, AS 18.66.100(c)(15), 4
AS 25.20.061(3), or AS 33.16.150(f)(2); 5
(8) a judgment for unpaid rent or damage owed to a landlord by a n 6
eligible individual that was a tenant of the landlord; in this paragraph, "tenant" has the 7
meaning given in AS 34.03.360; 8
(9) court-ordered forfeiture of an appearance or performance b ond 9
under AS 12.30.075. 10
* Sec. 13. AS 47.37.210(a) is amended to read: 11
(a) Except as required by AS 28.35.030(d) or 28.35.043(z) , the registration 12
and other records of treatment facilities shall remain confiden tial and are privileged to 13
the patient. 14
* Sec. 14. AS 28.35.039 is repealed. 15
* Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to 16
read: 17
INDIRECT COURT RULE AMENDMENT. (a) AS 18.85.100(a), as amended by sec. 18
7 o f t h i s A c t , h a s t h e e f f e c t o f changing Rule 39, Alaska Rules of Criminal Procedure, by 19
authorizing court-appointed couns el to a defendant who is parti cipating in the driving while 20
under the influence diversion program under AS 28.35.043, enacted by sec. 11 of this Act. 21
(b) AS 28.35.043(c), enacted by sec. 11 of this Act, has the e ffect of changing Rule 9, 22
Alaska Rules of Administration, by setting a filing fee amount for participation in the driving 23
while under the influence diversion program. 24
* Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 25
read: 26
TRANSITION: REGULATIONS. The Department of Administration may a dopt 27
regulations necessary to implement the changes made by this Act . The regulations take effect 28
under AS 44.62 (Administrative Procedure Act), but not before t he effective date of the law 29
implemented by the regulation. 30
* Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to 31
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read: 1
CONDITIONAL EFFECT. (a) AS 18.85.100(a), as amended by sec. 7 o f this Act, 2
takes effect only if sec. 15(a) of this Act receives the two-th irds majority vote of each house 3
required by art. IV, sec. 15, Constitution of the State of Alaska. 4
(b) AS 28.35.043(c), enacted by sec. 11 of this Act, takes eff ect only if sec. 15(b) of 5
this Act receives the two-thirds majority vote of each house re quired by art. IV, sec. 15, 6
Constitution of the State of Alaska. 7
* Sec. 18. Section 16 of this Act takes effect immediately under AS 01.10.070(c). 8
* Sec. 19. Except as provided in sec. 18 of this Act, this Act takes effect July 1, 2025. 9