BILL ANALYSIS
AB 1546
Page 1
Date of Hearing: April 17, 2001
Counsel: Alice Michel
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Carl Washington, Chair
AB 1546 (Zettel) - As Introduced: February 23, 2001
SUMMARY : Creates an alternate felony/misdemeanor for any person
convicted of reckless driving that proximately causes great
bodily injury (GBI). Specifically, this bill deletes the
requirement that a person convicted of reckless driving that
proximately causes GBI have a prior conviction for one of the
following in order to be convicted of an alternate
felony-misdemeanor:
1)Reckless driving;
2)Reckless driving with injury;
3)Participation in a speed contest or exhibition of speed;
4)Driving under the influence (DUI); or
5)DUI with injury.
EXISTING LAW :
1)Defines reckless driving as driving with willful or wanton
disregard for the safety of persons or property. A person
convicted of reckless driving is subject to not less than five
days and not more than 90 days in jail. (Penal Code Section
23103.)
2)Provides that a person convicted of reckless driving which
causes any bodily injury be punished by imprisonment in county
jail for not less than 30 days and not more than six months.
[Penal Code Section 23104(a).]
3)Provides that a person convicted of reckless driving which
causes GBI, who has a prior conviction for reckless driving,
reckless driving with injury, engaging in a speed contest or
exhibition of speed, DUI, or DUI with injury, is guilty of an
AB 1546
Page 2
alternate felony/misdemeanor. [Penal Code Section 23104(b).]
4)Provides that any person convicted of a DUI with injury
causing GBI, with two or more convictions for DUI, DUI with
injury, or reckless driving involving alcohol within the
previous seven years, shall be punished by imprisonment in
state prison for two, three, or four years. If the person is
granted probation, he or she must be confined to jail for at
least one year. (Vehicle Code Sections 23566 and 23568.)
5)Provides that a person who is convicted for engaging in a
motor vehicle speed contest be punished by imprisonment in
county jail for not less than 24 hours and not more than 90
days. [Penal Code Section 23109(e).]
6)Provides that a person who aids and abets in any motor vehicle
speed contest, or engages in or aids and abets a motor vehicle
exhibition of speed, be punished by imprisonment in county
jail for not more than 90 days. [Penal Code Section
23109(I).]
7)Provides that a person convicted of engaging in a motor
vehicle speed contest who has a prior conviction within five
years for the same offense be punished by imprisonment in
county jail for not less than four days and not more than six
months. [Penal Code Section 23109(f).]
8)Defines GBI as significant or substantial physical injury.
[Penal Code Section 12022.7(f).]
9)Provides that a person who causes the death of another person
by driving a vehicle with gross negligence is punishable
either by imprisonment in county jail for not more than one
year or by imprisonment in state prison for two, four, or six
years. [Penal Code Sections 192(c)(1) and 193(c)(1).]
10)Provides that a person who causes the death of another person
by driving a vehicle in the commission of an unlawful act not
amounting to a felony and without gross negligence is
punishable by imprisonment in county jail for not more than
one year. [Penal Code Sections 192(c)(2) and 193(c)(2).]
11)Provides that a person who causes the death of another person
while driving a vehicle under the influence of alcohol or
drugs but without gross negligence is punishable by
AB 1546
Page 3
imprisonment in county jail for not more than one year, or by
imprisonment in state prison for 16 months, 2, or 4 years.
[Penal Code Sections 192(c)(3) and 193(c)(3).]
12)Provides that a person who causes the death of another person
while DUI of alcohol or drugs and with gross negligence is
punishable by imprisonment in state prison for 4, 6, or 10
years. [Penal Code Section 191.5.]
13)Provides that a person who causes the death of another person
while DUI of alcohol or drugs and with gross negligence, and
has a prior conviction for the same offense, or a vehicular
manslaughter with gross negligence or while under the
influence, or DUI with injury, or DUI with prior convictions
for DUI, is punishable by imprisonment in state prison for 15
years-to- life. [Penal Code Section 191.5(d).]
14)Defines "serious felony" as any felony in which the defendant
personally inflicts GBI on another person. [Penal Code
Section 1192.7(c)(8).]
15) Provides that if a defendant is convicted of a felony
offense and it is pled and proved that the defendant has
previously been convicted of two or more serious or violent
offenses, as specified, the term for the current conviction is
an indeterminate term of life in prison with the minimum term
calculated as the greater of 25 years, three times the term
provided for each current felony conviction, or the
determinate term which would otherwise be imposed including
enhancements. (Penal Code Sections 667 and 1170.12.)
16)Provides that if a defendant is convicted of a felony offense
and it is pled and proved that the defendant has been
convicted of one prior violent or serious offense, as defined,
the term of imprisonment is twice the term otherwise imposed
for the current offense. (Penal Code Sections 667 and
1170.12.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement . According to the author, "The problem is
that when somebody is convicted for a first-time offense of
reckless driving that causes GBI, they cannot be prosecuted
AB 1546
Page 4
for the GBI because they do not have a previous reckless
driving conviction."
2)Statement in Support . The California District Attorneys
Association states, "Under existing law, reckless driving
resulting in GBI can be charged as a felony if the defendant
has prior convictions of reckless driving or DUI. However,
there are many instances of very dangerous first offense
reckless driving, such as driving on the wrong side of the
road, which results in GBI. It is regrettable that we can
only charge these defendants with misdemeanors after
endangering so many lives."
3)Statement in Opposition . California Attorneys for Criminal
Justice writes: "California already has some of the toughest
vehicle safety laws in the nation. There is no compelling
need to raise the punishments for persons convicted of
first-time reckless driving offenses involving GBI to another.
Current law already requires a mandatory 30-day minimum of
incarceration if any bodily injury occurs in the commission of
a reckless driving offense. The law also provides for the
suspension or revocation of driving privileges. These
sentences are appropriate and need not be enhanced."
4)"Strike" Sentence Enhancement Implication . If a defendant is
convicted of a felony under this statute, the felony would
become, under many circumstances, a prior "strike" for
purposes of sentence enhancement. Any felony in which a
defendant personally inflicts GBI on another person is a
"serious felony" or "strike" for sentence enhancement
purposes. [Penal Code Section 1192.7(c)(8).] If a defendant
is convicted of one serious felony and then is convicted of
any other felony, the term of imprisonment is twice the prison
term otherwise imposed for the current offense. (Penal Code
Section 1170.12.) If a defendant has a conviction for two
prior violent or serious felonies, and is convicted of a third
felony, the term of imprisonment is a minimum of 25
years-to-life. (Penal Code Section 1170.12.)
The proposed bill creates a potential felony for any person who
drives recklessly and proximately causes GBI. In order to
find that a person "personally inflicted GBI", and therefore
has committed a "serious felony", the person must do more than
proximately cause GBI. ( People v. Rodriguez (1999) 69
Cal.App.4th 341.) However, in establishing a strike, the
AB 1546
Page 5
prosecution is not limited to the elements of a charge. The
prosecution may look to the entire record of conviction to
prove the prior strike. ( People v. Rodriguez (1998) 17
Cal.4th 253, People v. Leng (1999) 71 Cal.App.4th 1.)
A prosecutor could charge a conviction of this statute as a
strike if the record of conviction shows that the defendant
"personally inflicted GBI". The "record of conviction"
includes the preliminary hearing transcript, the factual basis
for a plea, and defendant's statements in the probation
report. ( People v. Houck (1998) 66 Cal.App.4th 350, People v.
Sohal (1997) 53 Cal.App.4th 911, People v. Mobley (1999) 72
Cal.App.4th 761.) To "personally inflict" injury, the actor
must directly, personally, inflict the injury. ( People v.
Rodriguez (1999) 69 Cal.App.4th 341.)
A prosecutor will often be able to establish the "personal
infliction of GBI" in these reckless driving cases. In People
v. Guzman (2000) 77 Cal.App.4th 761, for example, the court
found that a driver who made an unsafe left turn in front of
another vehicle and caused a collision in which the passenger
in his car was injured personally inflicted GBI. The court
reasoned that the driver turned his vehicle into oncoming
traffic. This volitional act was the direct cause of the
collision and therefore was the direct cause of the injury.
Further, the accidental nature of the injuries suffered did
not prevent the court from finding personal infliction of
injury, nor did the fact that the collision involved two
vehicles and, therefore, another driver. In another case, a
drunk driver hit an abandoned vehicle. The impact caused the
vehicle to move and hit a person, and the person received
multiple injuries. The trial court found that the defendant
personally inflicted GBI. ( People v. Sainz (1999) 74
Cal.App.4th 565.)
Further, a car accident will often result in significant or
substantial bodily injury that qualifies as "GBI". "GBI" is a
significant or substantial physical injury. Minor, trivial,
or moderate injuries do not constitute GBI. ( People v.
Escobar , 3 Cal.4th 740 (1992); CALJIC instruction 17.20.) An
injury requiring stitches, or a broken arm, is likely to be
found to be GBI.
A felony conviction under this statute will often result in a
"strike" conviction. Should a person who has no prior driving
AB 1546
Page 6
record, drives recklessly for the first time and causes an
accident, be subject to a potential felony strike conviction?
5)Proportionality in Sentencing . A person who is convicted of
reckless driving without any injury is punishable by a
misdemeanor with not more than 90 days in jail. A person who
is convicted of reckless driving with bodily injury is
punishable by a misdemeanor with not less than 30 days and not
more than six months in jail. The distinction between bodily
injury and GBI is not necessarily that significant. GBI can
include stitches, or a broken arm. However, the punishment
increases from a maximum of six months to three years in state
prison.
A person who kills another person by driving a vehicle in an
unlawful manner, but not violating a felony, and not with
gross negligence, faces at most a year in county jail. A
person who is convicted of a DUI which proximately caused GBI,
and has two or more convictions for DUI, DUI with injury, or
reckless driving involving alcohol, within the last seven
years faces a state prison term of two, three, or four years.
This bill, however, would expose a person who has no prior
driving record and is convicted of reckless driving causing
GBI to a potential three-year prison sentence. Further, the
person would have a conviction that could be used as a
"strike" sentencing enhancement in the future.
6)Priors Requirement Increases Punishment for Recidivists Who
Deserve Harsher Treatment . The requirement that a person have
a prior conviction in order to receive a harsher sentence
serves to deter recidivism and protect society from repeat
offenders. Many areas of California criminal law increase
penalties for people who repeatedly break the law, and the
public is aware that repeat offenders are treated more
seriously. For example, the penalty increases for each
additional DUI conviction a person suffers. These increased
penalties are intended to punish recidivism. ( People v. Sainz
(1999) 74 Cal.App.4th 565.) A person with a prior conviction
for certain conduct, e.g. reckless driving, knows that the
conduct is prohibited and not tolerated. Therefore, they have
earned the harsher sentence if they violate the same law
again. The existence of the prior requirement provides an
important deterrent effect that justifies the harsher
treatment.
AB 1546
Page 7
7)Prior Legislation . SB 126 (Brulte), of the 1997-1998
Legislative session, as amended, proposed to make any
conviction for reckless driving with injury an alternate
felony/ misdemeanor. In addition, it made any reckless
driving causing GBI a straight felony punishable by two,
three, or four years in state prison. This bill was held in
committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Sponsor)
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Alice Michel / PUB. S. / (916) 319-3744