BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1997-98 Regular Session B
7
6
2
AB 762 (Torlakson)
As amended July 23, 1997
Hearing date: July 24, 1997
Health and Safety Code; Penal Code; Vehicle Code
MK:js
VEHICLES: DRIVING UNDER THE INFLUENCE
HISTORY
Source:Author
Prior Legislation:SB 1162 (Leslie) 1995, failed 29.10, Sen.
Crim. Pro.; SB 1405 (Ayala) 1996; SB 1579
(Leonard) Chapter 224, Stats. 1996; SB 1972
(Watson) 1996; AB 32 (Katz) 1995; AB 417
(Burton) 1995-96; AB 749 (Kuykendall)
Chapter 363, Stats. 1996; AB 1826 (Boland)
1996; Held Sen. Approp. Susp.; AB 1985
(Speier) Chapter 645, Stats. 1996; AB 2000
(Goldsmith) Chapter 690, Stats. 1996; AB
2240 (Battin) 1996, Failed Sen. Crim. Pro.;
AB 2740 (Ackerman) 1996, Failed Sen. Crim.
Pro.; AB 3316 (Tucker) Chapter 545, Stats.
1996; AB 3480 (Davis) 1996, Vetoed; AB 2639
(Friedman) Chapter 1237, Stats. 1994; SB 126
(Lockyer) Chapter 1244, Stats. 1993; AB 2851
(Friedman) Chapter 694, Stats. 1992; AB 1957
(Burton) Chapter 209, Stats. 1991; AB 713
(Leonard) Chapter 990, Stats. 1991; AB 2040
(Farr) Chapter 1403, Stats. 1990; AB 2025
(Farr) 1989-1990; SB 1344 (Seymour) Chapter
803, Stats. 1989; SB 1365 (Seymour) Chapter
1041, Stats. 1989; SB 1623, Chapter 1460,
Stats. 1989; SB 408, Chapter 479, Stats.
1989; AB 393 (Farr) Chapter 1108, Stats.
1986; SB 925, Chapter 1339, Stats. 1985; SB
1601, Chapter 1338, Stats. 1982; AB 541
Chapter 940, Stats. 1981; SB 38, Chapter
890, Stats. 1977; SB 330, Chapter 1133,
Stats. 1975
Support (to prior versions of the bill): League of
California Cities; City of Clayton Police Department;
City of Kensington Police Department; City of Morgan
Hill Police Department; City of Pleasant Hill Police
Department; City of Richmond Police Department; East
Bay Regional Park District Police Officers
Association; California Organization of Police and
Sheriffs; California State Sheriffs' Association; San
Bernardino County Sheriff's Department; Contra Costa
County Deputy Sheriff's Association; Contra Costa
County Supervisor Mark DeSaulnier; Peace Officers
Research Association of California; California
Association of Highway Patrolmen; California District
Attorneys Association; California Transit Association;
Eastern Contra Costa Transit Authority; California
Trucking Association; Association of California
Insurance Companies; State Farm Insurance Companies;
Personal Insurance Federation of California; Farmers
Insurance Group; Mt. Diablo Education Association;
California Council on Alcohol Problems; Citizens for
Reliable and Safe Highways; San Gabriel Valley Driver
Improvement, Inc.; Remove Intoxicated Drivers of Napa
Valley; Doris Tate Crime Victims Bureau; Coalition to
Actively Treat and Educate for Recovery (confirmed
support for this version of the bill); Mothers Against
Drunk Driving; California Catholic Conference; Contra
Costa County Police Chiefs' Association; Imperial
Valley Safety Services; LA Driver Education Center; a
number of individuals
Opposition (to prior versions of the bill): California
Association of Drinking Driver Treatment
Programs(confirmed opposition to this version of the
bill); California School Employees Association;
California Conference Board of the Amalgamated Transit
Union; National Council on Alcoholism and Drug
Dependence of the San Fernando Valley, Inc.; American
Civil Liberties Union; California Attorneys for
Criminal Justice
Assembly Floor Vote: Ayes 68 - Noes 8
KEY ISSUES
INSTEAD OF BEING REQUIRED TO ATTEND A 3-MONTH DRIVING UNDER
THE INFLUENCE PROGRAM, SHOULD A PERSON CONVICTED OF A FIRST
DUI BE REQUIRED TO ATTEND A 3-MONTH; 6-MONTH; 9-MONTH OR
12-MONTH PROGRAM DEPENDING ON THE BLOOD ALCOHOL LEVEL OF
THE OFFENDER?
(CONTINUED)
SHOULD AN ADDITIONAL $150 PENALTY ASSESSMENT BE PLACED ON FIRST TIME DUI
OFFENDERS TO HELP FUND COUNTY ALCOHOL AND DRUG TREATMENT SERVICES AND
PROGRAMS?
SHOULD THE MINIMUM TIME A VEHICLE SHALL BE IMPOUNDED FOR A SECOND OR THIRD DUI
BE 15 DAYS?
PURPOSE
Existing law provides for the specified distribution of
fines and forfeitures imposed and collected for crimes.
(Penal Code section 1463)
Existing law permits the court to order payment to the
victims restitution fund as a condition of probation.
(Penal Code section 1203.1)
Existing law provides that $50 of each fine collected for
specified DUI violations shall be deposited with the county
in a special account for exclusive allocation by the county
for the county's alcoholism program. (Penal Code section
1463.16)
Existing law provides that an assessment of not more than
$75 shall be imposed upon every fine or forfeiture
collected for a first offense DUI when the person is
ordered to participate in a county alcohol and drug problem
assessment program. (Vehicle Code section 23249.55)
This bill provides that in addition to any other fine, a
person convicted of a first offense DUI violation shall pay
an alcohol and other drug and education and counseling
assessment of $150 which is to be deposited by the county
treasurer in a special county Alcohol Treatment and
Counseling Fund for the use of the county to fund specified
efforts to ameliorate alcoholism and drug dependency.
This bill also provides that the above fine may be ordered
as a condition of probation.
Under existing law, typically a person convicted for the
first time of offenses relating to
driving-under-the-influence of alcohol or drugs is
referred, as a condition of probation, to a 3 month
licensed driving-under-the-influence program. (Vehicle
Code section 23161; Health and Safety Code section 11836 et
seq.)
Existing law permits a court, as a condition of probation,
to refer a person convicted for the first time of offenses
relating to driving-under-the-influence of alcohol or drugs
to attend six, nine, or twelve months of program
activities. (Health and Safety Code section 11837)
Under existing law, a person arrested for driving with a
blood alcohol level of .08 or above must attend a licensed
driving-under-the-influence program in order to have their
license reinstated unless they are acquitted of that
charge. (Vehicle Code sections 13352; 13353.2)
This bill requires a person convicted of a first DUI to
attend a 3-month, 6-month, 9-month or 12-month
driving-under-the-influence program, the length of which is
to be based on the blood alcohol level, whether or not they
are granted probation by the court.
Under existing law a DUI conviction only acts as a "prior"
for sentencing purposes for 7 years after the offense was
committed.
Under existing law specified prior offenses will not act as
priors for enhancement purposes if a current offense
occurred after ten or more years in which a defendant
remained out of prison and committed no new offenses.
(Penal Code sections 667.5, 667.51, 667.6)
This bill provides that if a person has any prior alcohol
or drug related offense, then they should be sentenced to a
multiple offender program for 9 months and if they are
convicted of a refusal they must attend a multiple offender
program for 12 months.
This bill requires an assessment report to be made on each
person who participates in a drinking-driver program which
shall include a recommendation for any further treatment
which is needed. The report is to be included in the
probation report and the bill states that the court or the
probation department can use the report to determine
additional treatment requirements needed to fulfill the
terms of probation.
This bill requires the State Department of Alcohol and Drug
Programs to establish minimum specifications for alcohol
and other drug problem assessment tests.
Existing law provides that a court may order the impound
for 1 to 30 days of the vehicle of a person convicted of a
first DUI. (Vehicle Code section 23195(a))
Existing law provides that a court shall impound for 1-30
days the vehicle of a person convicted of a second DUI
within 5 years. (Vehicle Code section 23195(a))
This bill makes 15 days the minimum time a car shall be
impounded for a second DUI in 5 years.
Existing law provides that a court shall impound for 1-90
days the vehicle of a person convicted of a third DUI
within 5 years. (Vehicle Code section 23195(a))
This bill makes 15 days the minimum time a car shall be
impounded for a third DUI in 5 years.
The purpose of this bill is to make changes to existing
penalties for DUI.
COMMENTS
1. Need for the Bill
According to the author:
Alcohol-impaired driving continues to be a serious
safety issue and a killer of more than 1,300 persons
and causes 36,000 injuries every year. This bill is
an attempt to mitigate some of the deaths and injuries
caused by alcohol-related driving incidents by
ensuring that DUI offenders receive a level of
treatment that is appropriate. A critical need exists
for an assessment and intervention program to identify
offender involvement with alcohol and/or drugs and to
intervene with a treatment program of appropriate
length. This intervention will reduce the incidence
of subsequent arrests among this population, and will
translate into cost savings by reduced case filings,
reduced congestion, and reduced court delay.
2. Recent Amendments
This Committee received amendments for this bill in
Legislative Counsel form after 5:00 p.m. on July 22.
Because of the late date of the amendments, neither the
consultant nor interested parties may have had time to
thoroughly review the changes made to the bill. Thus, this
analysis reflects only initial questions regarding the
current version of the bill.
3. Extending the Length of the Program
a. Existing law
Generally, under existing law, among other
penalties, a person convicted of a first offense DUI
who is given probation is required to attend a 90
day driving-under-the-influence program (program).
This bill requires a court to sentence a person to a
3-month, 6-month, 9-month or 12-month program,
depending on their blood-alcohol level at the time
of arrest, whether or not they have been sentenced
to probation. If a person has a blood alcohol level
of .08-.10 they must be sentenced to a 3-month
program; if their blood alcohol level is .11-.16
they must be sentenced to a 6-month program; if
their blood alcohol level is .17- .22 they must be
sentenced to a 9-month program and if their blood
alcohol level is .22 or above they must be sentenced
to a 12-month program.
b. Established blood alcohol levels
Opponents question mandating a lengthier program
solely based on blood alcohol level and question the
use of these particular blood alcohol levels.
Opponents note that while blood alcohol level could
be an indicator of a greater drinking problem but is
not always an indication of such a problem.
Opponents also point out that it does not
necessarily take a high level of alcohol for a
person to reach a .10, and thus requiring a person
with a .11 or above to attend a 6-month program
solely on the basis of the blood alcohol level is
not appropriate in many cases.
SHOULD BLOOD ALCOHOL LEVEL BE THE SOLE BASIS FOR
DETERMINING THE LENGTH OF A PROGRAM?
IF BLOOD ALCOHOL LEVEL SHOULD BE THE SOLE BASIS FOR
DETERMINING LENGTH OF PROGRAM, ARE THESE LEVELS
APPROPRIATE?
c. When probation is not granted
This bill appears to require the court to sentence a
person to a 3-month, 6-month 9-month or 12-month
program even in situations where probation is not
granted. With the exception of a finding of
contempt, it is not clear what authority the court
will have to enforce an order to attend a program
when a person is not on probation. When someone is
on probation and they fail to attend a program the
court has the authority to revoke their probation.
This authority does not exist if the person is not
on probation.
HOW WILL THE COURT ENFORCE AN ORDER TO ATTEND A
PROGRAM IF A PERSON IS NOT ON PROBATION?
d. Support
Supporters believe lengthening the time of the
program will be beneficial to the participants and
give the providers more time to deal with their
problems.
e. Effectiveness of increase
Studies done by the DMV Research and Development
section have shown that increasing the duration of
treatment has not been shown to increase its overall
effectiveness. For example, in evaluating the
increase in second-offender programs from 12 to 18
month "there is no evidence to support the
hypothesis that adding 6 months to ... programs
enhanced their effectiveness. While this finding is
surprising, it does find support in literature. A
recent scientific review (called a meta-analysis) of
more than 200 studies found that neither the
duration of an educational/treatment intervention,
nor its number of hours, were significantly
correlated with DUI recidivism." (California DMV,
An Evaluation of the Effectiveness of California
Drinking Driver Program: Report to the Legislature
of the State of California, in Accord with Senate
Bill 1344, Chapter 803, 1989 Legislative Session,
January 1995, p. ix)
IF THERE IS EVIDENCE THAT LENGTHENING THE PROGRAM WILL
NOT HELP RECIDIVISM, WHAT IS THE GOAL OF DOUBLING OR
TRIPLING THE LENGTH OF THE PROGRAM?
f. Cost increase
Opponents are concerned about the increased cost
that will accompany an increased program and the
increased costs effect on poorer people. Programs
are self-supporting on the fees of the participants.
All providers must provide the program with fees
based on an ability to pay. Doubling the length of
the program will increase the cost. In smaller
counties where the counties fund the programs
because they do not have private providers, the
increased cost may fall on the county.
Supporters believe that the increased program costs
will not double, triple or quadruple with the length
of the program.
HOW WILL THE INCREASED COST ASSOCIATED WITH AN
INCREASED LENGTH OF THE PROGRAM EFFECT THE
PARTICIPANTS?
g. Potential loss of participants
Other opponents are concerned that an increase in
the length of the program will cause people to "drop
out" of the system entirely. These people will
drive on suspended licenses and since they have not
attended a program, may be more likely to reoffend.
Opponents question whether the increase in the
length of the program will be setting people up to
fail, since it is often hard to keep people who have
problems interested and active in the shorter
programs.
WILL THE INCREASED LENGTH OF THE PROGRAM INCREASE THE
NUMBER OF PEOPLE WHO "DROP OUT" OF THE SYSTEM?
DOES THE INCREASED LENGTH OF THE PROGRAM SET PEOPLE UP
TO FAIL?
4. Extended Program If Prior Alcohol or Drug Offenses
This bill provides that if a first offender DUI has any
prior alcohol or drug offense--whether vehicle related or
not--they shall be required to attend a nine-month repeat
offender program and if they have refused to take a
chemical test they will be required to attend a 12-month
repeat offender program.
Although it is unclear, it appears as if these programs
would be in addition to the other program requirements. It
is not clear what benefit attending two different programs
would have and opponents who run repeat offender programs
question lumping first offenders in with repeat offenders.
Under existing law a DUI only acts as a prior for 7 years.
This Committee passed AB 130 (Battin) which provided that
when someone has received a felony DUI any DUI within the
next 10 years will also be a felony. By requiring an
extended program for a person who has any prior alcohol
offense, this bill appears to be getting rid of the washout
for these purposes.
This additional program would also apply to a person who
had years ago been convicted of a minor in possession of
alcohol, a possession of marijuana or other
non-drinking-driving related offenses that may or may not
indicate that that person has a substance abuse problem.
DOES THIS BILL REQUIRE ATTENDANCE AT TWO SEPARATE PROGRAMS?
SHOULD FIRST OFFENDERS WHO ARE CONVICTED OF A REFUSAL BE
LUMPED TOGETHER IN A PROGRAM WITH REPEAT OFFENDERS?
IS THIS AN ATTEMPT TO GET RID OF THE WASH-OUT PROVISION
THAT THIS COMMITTEE DEALT WITH IN AB 130 (BATTIN)?
SHOULD A PERSON WITH A PRIOR ALCOHOL OR DRUG
OFFENSE--VEHICLE RELATED OR NOT--ANY TIME IN THEIR LIFE BE
REQUIRED TO ATTEND A LONGER PROGRAM SOLELY ON THAT BASIS,
WITHOUT ANY COURT DISCRETION?
5. Assessment Requirement
This bill requires an alcohol and other drug assessment
report to be made on each first offender who participates
in a drinker-driving program and requires the Department of
Alcohol and Drug Programs to establish minimum
specifications for alcohol and drug problem assessment
tests not later than September 30, 1998.
The bill does not make clear who is to do the report but
requires it to include a recommendation of any treatment
needed in addition to the education and counseling.
The bill provides that the report shall be delivered to the
court within 60 days of enrollment in a program and should
be included in the probation report.
The bill also provides that the report "shall be used by
the court or probation officer to determine additional
treatment requirements needed to fulfill the terms of
probation."
It appears as if the bill intends to require the court to
go back and review and possibly add to probation
requirements of an individual; this would likely be
unconstitutional. A probation agreement is a contract
between the court and the individual and cannot be altered
by the court unless the defendant violates probation and if
a defendant violates probation by failing to attend a
program, why would the court want to try and require
additional treatment? If the court could go back and alter
probation requirements after a defendant agreed to them
then no defendant would want to agree to probation since
the requirements would be unsure.
SHOULD THE BILL BE CLARIFIED AS TO WHO IS TO DO THE
ASSESSMENT?
IS THE BILL REQUIRING (1) THE COURT OR PROBATION OFFICER TO
REEVALUATE THE PROBATION REQUIREMENTS BASED ON THE REPORT
AND (2) EX POST FACTO IMPOSE NEW PROBATION REQUIREMENTS?
WOULD THIS BE UNCONSTITUTIONAL?
IS A SEPTEMBER 30, 1998 DATE FOR THE DEPARTMENT OF ALCOHOL
AND DRUG PROGRAMS TO ESTABLISH CRITERIA FOR ASSESSMENT
APPROPRIATE?
6. Additional Fine
This bill adds a $150 "assessment" on first time DUI
offenders. The money is to be deposited in a county fund
to be used by the board of supervisors to fund:
Treatment and care through licensed chemical dependency
hospitals;
Residential treatment programs that have valid licenses
issued by the state to provide alcohol or drug services;
Alcohol and drug treatment services that are operated or
funded by the county.
Opponents question placing additional fines on DUI
offenders. They note that a first time offender faces,
among other things a fine of $390-$1000 plus 170% penalty
assessments; $75 if the county participates in an
assessment program (which will now be mandatory); potential
cost of an ignition interlock device; the cost of the
program (which will increase under this bill because of the
increase in the length); and DMV costs to get their license
back. Opponents also question how much money the $150 will
actually be paid, since the fines for DUI and costs
associated with getting a DUI are already so high.
Also, while the previous version of this bill contained an
ability to pay provision, that provision has been removed
from this version of the bill.
SHOULD AN ADDITIONAL $150 PENALTY ASSESSMENT BE IMPOSED ON
FIRST TIME DUI OFFENDERS TO HELP PAY FOR COUNTY RELATED
DRUG AND ALCOHOL SERVICES?
IF AN ADDITIONAL $150 IS IMPOSED, WILL IT BE COLLECTED?
IF AN ADDITIONAL $150 IS IMPOSED WILL IT BE ENOUGH TO HELP
COUNTY RUN PROGRAMS WITH THE INCREASED COSTS ASSOCIATED
WITH LENGTHENING THE PROGRAMS?
SHOULD THE BILL CONTAIN AN ABILITY TO PAY PROVISION FOR
THIS ADDITIONAL $150 FINE?
7. Length of Impound
Existing law provides for the mandatory impound for 1-30
days of vehicles for a second or third offense occurring
within five years of a prior offense. This bill increases
the minimum time of impound to 15 days.
Existing law provides that the judge does not have to order
the impound of the vehicle in "unusual cases where the
interests of justice would best be served by not ordering
impoundment." Since the minimum length of impound is being
increased from 1 to 15 days, opponents question the
existing standard and suggest the law should specify that
the car should not be impounded when it is the only vehicle
for the household and/or when it is owned through community
property or jointly with another individual who may need
the use of the automobile.
Opponents also suggest that increasing the length of the
impound could jeopardize the impoundment of vehicles in
this state since many individuals are choosing to walk away
from the vehicles because the cost of impoundment is so
great. This leaves the county with the task of selling the
vehicle to recover the costs of impoundment.
SINCE THE MINIMUM TIME FOR IMPOUNDMENT OF A VEHICLE IS
BEING INCREASED TO 15 DAYS, SHOULD THE LAW GIVE THE JUDGE
CLEAR DISCRETION NOT TO IMPOUND THE VEHICLE WHEN IT IS
OWNED IN COMMUNITY PROPERTY OR IT IS THE SOLE VEHICLE FOR A
HOUSEHOLD?
WITH PEOPLE CHOOSING TO WALK AWAY FROM IMPOUNDED VEHICLES,
WHAT AFFECT WILL THE INCREASED MINIMUM IMPOUNDMENT HAVE?
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