Proposition 100

June 14, 2007

Transcript:

Matthew Whitaker:
Tonight on "Horizon," lawmakers are doing a reversal on a law just passed that would have required first-time drunk drivers to use an interlock device on their cars. And we'll talk a bill to withhold bail on illegal immigrants accused of a serious felony. All that is coming up next on "Horizon."

Announcer:
"Horizon" is made possible by contributions from the friends of eight, members of your Arizona PBS station. Thank you.

Matthew Whitaker:
Good evening and welcome to "Horizon." I'm Matthew Whitaker. Before we get to our main topic tonight, here's the latest news. House and senate leaders say that they have agreed on a state budget for the upcoming fiscal year. The main sticking point between the house and senate was tax cuts. However, lawmakers won't talk about any agreements on that or any other part of the budget until they vote on it next week. The house voted 54-1 today to reverse itself on a bill just recently signed into law by Governor Napolitano. The new law requires first-time DUI offenders to use interlock devices that would prevent them from starting their car without a breath test. Lawmakers decided the new law was too harsh on first-time DUI offenders. Here now to talk about the bill reversal is Representative John Kavanagh, also here is Senator Linda Gray, and Representative Ben Miranda. Thank you, all of you, for joining us on "Horizon" this evening. This is a very important topic and a very intense debate that's surrounding it. First, Representative Kavanagh, I'd like to ask you why was the first bill requiring DUI interlocks for first-time offenders passed.

John Kavanagh (R) Scottsdale:
Well, the first -- that bill was introduced as an amendment to another DUI bill. It was done at the last minute. It short-circuited the safety procedures we have which normally call for committee hearings, staff reports, public input, and questioning. This was a last-minute amendment tacked onto another bill. The sponsor of that amendment said that evidence in New Mexico supported the use of a first-time -- of an interlock device for a first-time, non-extreme DUI offender. We all believed him. However, subsequent research reviews showed that that is not the case that the research where they separate out first-time non-extreme DUI offenders shows that the use of the interlock does not increase in any way recidivism and there's also no difference in conviction. So it basically has no effect.

Matthew Whitaker:
Was there a committee or hope for a committee that would work towards scaling back for penalties for first-time offenders?

John Kavanagh:
This particular amendment scales back, removes it not totally. Since it passed the house, the next step would be hopefully to go to a committee to try and work out some sort of a reasonable compromise acceptable to both sides and to the governor so that we can not abandon the use of the interlock for first-time DUI's but at least scale back and wait until the research comes in from New Mexico to see if it's justified for wider use.

Matthew Whitaker:
Ok and one more question quickly. What evidence have you brought to bear to suggest that these devices aren't as effective in stopping drunk drivers?

John Kavanagh:
Well, there are only a few studies which actually separate the first-time offenders and look at how they work with the interlock. There was a California study, also a study in the Journal of Drug and Alcohol Abuse, and a Canadian study, and they consistently showed that for first-time non-extremes, there's no difference in recidivism and also no difference in crashes. So basically, for first-time offenders, it just doesn't work.

Matthew Whitaker:
Ok. Senator Gray, are you -- the bill was passed by the house, the right to repeal interlocking devices. Are you for or against that bill?

Linda Gray (R) Glendale:
I'm against the repeal. And senate bill 15-82 was my bill, and it passed the senate, had to do with treatment and allowing judges to use scram, which is a continuous alcohol monitoring system. And then it was kind of hijacked in committee of the whole with the Kavanagh amendment that was put on there, likely reversing the standard that was set when we haven't even given it a chance. There are other studies that my friend here is not willing to recognize that says the interlock is very effective in reducing recidivism from 40-95 percent. If the device is on the vehicle, and whether you're a first-time or second-time offender and you go to start the vehicle and have alcohol content, you don't drive drunk. Now, is that a good safety policy for Arizona? I believe it's an excellent safety policy. We'll have an argument that says, oh, no. That's a burden on the family. Well, what about the wife whose husband is out there driving drunk? She knows it. I'm sure she feels far more comfortable in knowing that an interlock would be on the vehicle protecting her family, protecting her husband from harming himself or some other family -- for liability. So I think it's a very good policy, and I do not like -- would not like to see it reversed.

Matthew Whitaker:
Do you think that the governor is going to veto the reversal?

Linda Gray:
I cannot speak for the governor and would certainly like to work with her on what she's comfortable with as this bill, which is very important and moving forward on monitoring and treatment and education that needs to go forward. I think we need to accept what is in law right now and signed by the governor and move on, find out if this protects our citizens.

Matthew Whitaker:
Ok. Representative Miranda, you voted against the original bill requiring interlock devices. Can you tell us why?

Ben Miranda (R) Phoenix:
I think the whole area is still a work in progress. I think we've heard a lot of discussions not only today but also on the floor regarding the reliability of the studies that were done. The methodology is either off or people are interpreting these things different. But I think a point that was made earlier in our discussions with Representative Kavanagh makes sense that the fact is no one segregated that category of first-time offenders and determined whether or not the degree to which recidivism exists. And also we're dealing with deterrents here. If we're going that apply deter relation factors by requiring this interlocking device, let's make sure it works on studies that are reliable. I'm sure there's an economic cost to the family born by someone other than the driver. We are Arizona. Tourism here is a major, major industry for us. And before we move against this industry, I think we need to have a reliability factor with respect to the studies that were done.

Matthew Whitaker:
How did you vote today?

Ben Miranda:
I voted for it. I voted for the Kavanagh amendment put on earlier. I supported him, and I voted for it as is.

Linda Gray:
Concerning tourism in New Mexico, there's been no decrease in tourism. I wonder how many go to the internet and find out what are the DUI laws when they come to Arizona. They're not finding that out. As far as the industry, they're the ones that are saying, "we're going to lose tourism." I don't believe that's possible. I think their concern is the bottom dollar. How much are we going to have in sales for alcohol? They are not concerned about the safety.

Ben Miranda:
But I think then that we're also looking at relying on a study before we move forward with legislation. I think that's much more important, because we move in the wrong direction and it doesn't resolve the issue but we hurt the country -- I mean the state economically. We've done nothing with it.

John Kavanagh:
If the imposition of an interlock on anybody decreases tourism but the interlock works, then do it. I don't care about tourism. That's not the issue here. The reason why we opposed the interlock only for first-time non-extremes is that the research says it doesn't work, that it imposes a cost upon the family to maintain it and it also humiliates the other family members, if it's a family car, who have to drive around and blow in the device with friends. It doesn't work, and policy should be based on that which works.

Matthew Whitaker:
And both of you have mentioned research. Can you briefly tell our viewers who you're looking at, what are the authors of the research are?

John Kavanagh:
The biggest study is the California DMV study in September, 2004. I'll quote. They segregated the first-time non-extremes, and this is what they said. The results of study 4 indicate that a court-prescribed I.I.D. order or restriction for first-time DUI offenders, all of whom had elevated blood alcohol levels, is not associated with reductions in subsequent DUI convictions or crashes. This calls into question utility of I.I.D. for first-time offenders. Then there was a study in the American Journal of Drug and Alcohol Abuse. This is a peer-reviewed medical journal. This is not an advocacy group that's going to spin it. Quote, there was almost no difference for first offenders. Accordingly, the ignition interlock appears to significantly reduce recidivism for repeat and younger DUI offenders but offers almost no improvement for the first offenders. It's very clear.

Matthew Whitaker:
Senator Gray?

Linda Gray:
The once in Alberta says it works in reducing recidivism for anyone on the interlock between 40 and 95 percent. If the device is going to prevent you from driving drunk -- and, to me, that's what's most important, whether you're a first-time offender or second-time offender, that it prevents you from driving drunk, and that goes to the safety of Arizona.

John Kavanagh:
If I may, the Alberta study was ambiguous. Two different teams of researchers looked at the data, coming to opposite conclusions, which suggests that, if there was a difference, it was minor or the study was methodologically flawed and they couldn't interpret it. You can't base policy by finding one study which went either way when there are other studies which clearly say it doesn't work.

Matthew Whitaker:
Let me ask you this. If the reversal doesn't become law, what alternatives do you have?

John Kavanagh:
Well, if it doesn't -- if it stays, then there will be a lot of people who are going to be going through an expense unnecessarily. There will be families embarrassed. We will have thought we provided the courts and law enforcement with an effective tool when we haven't. We would have been distracted from the real battle against drunk driving. Which, probably at this point, since we have good penalties, we should focus on better enforcement.

Matthew Whitaker:
And will interlock devices still be required for those accused of extreme DUI's?

John Kavanagh:
Absolutely. Nobody objects to a first-time extreme. Nobody objects to a second-time non-extreme. It's just the first-time non-extreme because the data doesn't support it.

Linda Gray:
That's not true. 10 years ago, when I did the extreme DUI for extreme and repeat offender, the liquor industry again came out in opposition to that bill. Regardless, they're in opposition because it reduces their bottom dollar, and that's what this is about to the liquor industry and why it has so many lobbyists here.

John Kavanagh:
It's nice to see two Republicans go at it, but I'll tell you it was good debate on the floor. I think we went in the right direction. We voted it in the right direction because I think we still need to move forward so we don't mislead the public into thinking we're doing something about the DUI's in the way the interlock devices are merged with the whole concept of trying to control drunk drivers on the road and do something for the public. But still the studies were inconclusive, in my opinion. Nothing on these studies were conclusive in terms of the debate that took place on the floor.

Linda Gray:
One way or another, we have to decide whether senate bill 15-82 is going to go forward. If it has this amendment on there reversing what we did, I'm afraid there will be a veto, and we will have lost the good things that are already in the bill as it came over from the senate. So if we're not able to come to an agreement with the governor, as far as I'm concerned, senate bill 15-82 is dead, which will cause the implementation of senate bill 10-29.

John Kavanagh:
That would be a tragedy all around, and I think we all agree on that and we can all arrive at a good --

Linda Gray:
Tragedies are the deaths on the highway.

John Kavanagh:
Absolutely.

Matthew Whitaker:
There was a demonstration at the capitol today. Did that have any influence on the vote at all?

John Kavanagh:
I don't think so.

Linda Gray:
The vote was prior demonstration to the vote on the interlock.

John Kavanagh:
That wasn't a demonstration of people. That was a demonstration of the device.

Linda Gray:
We did not have anybody impaired down there to give it a true test.

[Laughter]

John Kavanagh:
Not from alcohol.

Matthew Whitaker:
We've run out of time. Thank you all.

John Kavanagh:
Thank you for having us.

Matthew Whitaker:
There's a lot of controversy over the implementation of Proposition 100 which was approved by voters last year to deny bail to illegal immigrants accused of serious felonies. Critics say the court is not implementing it. State lawmakers are now working on a bill to lower the bar in proving whether someone is here illegally. I'll talk to two lawmakers about the bill, but first here's more on how someone's legal status is determined in court.

Mike Sauceda:
Proposition 100 was approved by voters to deny bail to illegal immigrants who are accused of a felony. Laws and procedures must still be followed when applies the new law.

Jerry Landau (Arizona Supreme Court) :
The court must follow the law. The court must follow the constitution of the state of Arizona and the constitution of the United States of America, and that's what we're doing. The court is following the law. The voters passed Proposition 100, and we all respect that, and we follow it as stated within the constitution and as stated within the implementing statutes. I think where the difference of opinion comes in is how the statutes are interpreted and the type of evidence that's admitted to prove what is required by the constitution and by the statute.

Mike Sauceda:
Currently proving whether somebody is in the country illegally is a two-step process in the court. Under rules set to enforce Prop 100 --

Jerry Landau:
Under the administrative order issued by the chief justice that is being followed throughout the state, initially there is a determination as to whether or not there is probable cause that, number one, the person committed the offense charged and probable cause as to, number two, whether the person entered or remained in the country illegally. If the commissioner finding at the initial appearance that there is probable cause as to both prongs, then we move on to a second hearing, which is an evidentiary hearing, a more detailed hearing that is to be held within 24 hours of the initial appearance. At that hearing, where evidence can be produced by either side, the standard or burden of proof that is stated within the constitution as to whether the charge was committed, proof evident, presumption great, applies, and further the standard of proof that's stated in the statute, as interpreted by the administrative order, again proof evident, presumption great, must be shown.

Mike Sauceda:
Evidence that the person is here illegally is provided by the arresting police agency.

Jerry Landau:
The evidence could be anything that an officer decides to include. It could be that the person said he entered the country illegally. It could be that the person was deported. The officer might decide to write down that the person is not a citizen of the United States. That in itself may not be enough to hold the person.

Mike Sauceda:
The current rules for determining whether someone is here illegally could change if senate bill 12-65 passes, which could lower the bar for denying bail when proof is evident or the presumption is great to probable cause. The Supreme Court itself is also petitioning to change the hearings from one to two to prove lack of citizenship, although the court's petition to retain the higher standard of proof.

Jerry Landau:
I think both contemplate one mandatory hearing instead of two, one at the initial appearance, and then it would be up to the court to implement the rules to -- then it would be up to the court to implement rules to allow for subsequent hearings, and the petition to and the rule does allow for a subsequent or a second hearing on the request of either party.

Matthew Whitaker:
With me now to talk about senate bill 12-65, which makes changes regarding proposition 100, is the sponsor, Senator Linda Gray. Also here is Representative Ben Miranda, who opposes the bill. Thank you for joining us again for this segment. Senator Gray, can you tell us, do you think that the courts are not implementing Proposition 100 correctly?

Linda Gray:
I first noticed and understood that the courts were not implementing it when I heard about a story after young man close to my district. He was killed by a drunk driver who was here illegally. And the first bail -- and this is a class 1 through 4 felony, met the felony crime, but when it came to bail, the first commissioner set bail at $150,000, even though the person indicated they were here illegally. Then the next commissioner said, "we're going to reduce that bail." I think it was down to $50,000. There was an appeal to the judge in saying the person's here illegally. They've admitted. And the judge said, well, I don't know if I can reverse what the commissioner did. And he came back two days later and said, "yes, I can," and there was no bail set. So is it working? No. A family should not have to go through that much trouble and hire an attorney to appeal what was going on there in that court when the individual indicated they were here illegally. So that was my first attention, and then I contacted the courts and had a letter from Chief Justice Macgregor. She that day, April 3rd, implemented an administrative order, and she sent a letter to the speaker and the president indicating this is what's occurring in the court. We do need to improve and we also need some legislation. I'm just following through with what chief justice Macgregor indicated and what we need with the legislation. In the Proposition 100, when it was passed, it did not set a standard of proof for the person being here illegally, and that's what we're dealing with.

Matthew Whitaker:
Representative Miranda, do you want to respond?

Ben Miranda:
Sure. And it's not a question of whether or not we implement what's required in the proposition 100. It's how we do it. Not everyone that's going to land in front of a judge is going to be carrying a backpack and look like they just crossed 100 miles of the desert. A lot of individuals will come before a judge and speak only Spanish or a foreign language and will be questioned about their legal status. That's what we're talking about. For every case where we have some impropriety or some fact to show the abuses of the system, we also have it the other way, Whitaker, I mean Matthew. The fact is that a few years back, we had in the city of Chandler, a roundup that resulted in several individuals being deported to Mexico, and those individuals were American citizens. Now, all we're asking is that the standard, when you inquire about a person's legal status, be raised to a level that requires that judge to make the necessary inquiries. That's only in compliance with the constitution of the United States. If we don't do it right, we may pass other laws as the legislature. We're going to end up in the court with something that's unenforceable, declared unconstitutional.

Matthew Whitaker:
Senator Gray, your bill would lower the bar in proving whether someone is accused of a serious felony is in the country illegally, that probable cause. Why is there a need to lower the standard?

Linda Gray:
There was no standard set in Prop 100. It just stated that, if you're here illegally with a class 1 through 4 felony, you would not be released. It didn't indicate what standard. And so, because of what was sent to us by chief justice -- and here it says has the person entered or remained in the U.S. illegally, yes or no, if yes, probable cause is established for the following reasons. One thing not in prop 100 were the following reasons. She said admission of the person, statement of co-defendants at the time of arrest, verification of a legal presence, information provided at the issuance of the warrant. And so what she wrote in here is what we implemented into the bill as probable cause.

Matthew Whitaker:
Ok.

Ben Miranda:
I respectfully disagree with that. We do have a standard. The standard was proof evident, presumption great. Which is a little higher standard be probable cause.

Linda Gray:
Which is for the crime.

Ben Miranda:
But that was also something taken into consideration in terms of setting bail. And I'll tell you, it's necessary that we raise that level because we make errors and we make mistakes. We end up punishing innocent individuals. As much as I would like to have a standard that's being proposed under this bill, I can't support it for that reason. We have to safeguard the right of people to bail. Now, let me -- keep one thing in mind. We're talking about a class 4 felony. Class 4 felony is a person that goes out and, for some reason, falsifies his ID, a lot of people falsify -- young kids are falsifying their ID's because they want 21, something that indicates they're 21 years of age to be able to buy alcohol. If your son gets caught with that, that's a class 4 felony now. So we're not talking about horrendous crimes here. We're talking about minimal crimes that subject a person to being stuck in a facility for months at a time.

Matthew Whitaker:
And speaking of those requirements, senator gray, there are other reasons why bail can be denied according to the constitution, such as capital crimes, crimes against children, et cetera, et cetera. Will senate bill 12-65 lower the standard for those as well?

Linda Gray:
No. And we are not lowering the standard for the criminal portion of it, only -- and we're not lowering the standard. It's presumption great for the crime. It is probable cause if they're here illegally, and that's what prop 100 didn't address as far as a standard. It is probable cause. Now, what's happening in the court, we have the 4-1 commissioner in which the prosecutor there introduces the defendant's booking record that shows an ice hold detainer and the court says, no. That's here say. You're released. Another one admitted that he was here illegally a month ago, and this is what the officer is presenting, and the judge determined that the person could have become a citizen within that month that he was last arrested, so they let that person go. And then the commissioner said, "There's nothing specific in the statute. Point to me and show me what's in statute." Now, that's why we have senate bill 11-65 or 12-65.

Ben Miranda:
I think that the courts are well on their way to ironing out the kinks. We provided no guidance for the courts to enable them to establish the legal residence or at least the legal status of the individual. The courts proceeded in the best possible way they could. The fact is and now the legislature is moving, I think, prematurely to try to address those issues. The courts have already figured out an approach. They are now allowing for a hearing to take place where evidence could be presented if they're going to hold that individual. Now, I think that's a reasonable way to approach. This eliminates the request for a second hearing, a hearing to be held regarding the legal status, and I think it's going to be the right way to follow but, if this becomes law, I think you're going to find a lot more confusion resulting from this.

Matthew Whitaker:
Now, the bill seems to require that all those incarcerated will be asked about their citizenship within 24 hours. How do you feel about that? Does that concern you?

Ben Miranda:
Well, I think if we have fair -- I mean, we have proposition 100 whether I agree wit or disagree with it. That's besides the point. We have to implement it. I think the 24-hour period may be difficult to enforce at this point and simply because you may require a hearing. An officer has to present himself, has to present evidence that he's -- you arrest an individual at 7:00 in the evening and he goes off shift and has to come back within 24 hours, you may have a problem having them come back for that hearing. There's a number of things that are problematic with this.

Matthew Whitaker:
We're out of time. Thank you very much for joining us.

Ben Miranda and Linda Gray:
Thank you.

Mike Sauceda:
Lawmakers are changing a bill to require alcohol detectors for first-time drunk drivers. The house moves to overturn a new law requiring ignition interlock devices for them. And lawmakers have passed a bill cracking down on child prostitution. All that and more Friday on "the Journalists' Roundtable" on "Horizon."

Matthew Whitaker:
This Thursday evening on "Horizon," I'm Matthew Whitaker. Good night.