BILL NUMBER: AB 1487 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 24, 2007
INTRODUCED BY Assembly Members Berryhill, Maze, and Spitzer
(Coauthors: Assembly Members Fuller, Garrick, Nakanishi, Parra,
and Sharon Runner)
FEBRUARY 23, 2007
An act to amend Sections 14602.8, 23538, 23556,
and 23575 of the Vehicle Code, relating to vehicles.
LEGISLATIVE COUNSEL'S DIGEST
AB 1487, as amended, Berryhill. Vehicles:
driving-under-the-influence.
(1) Existing law provides that a peace office may cause the
immediate removal and seizure of a vehicle where the officer
determines a person has been convicted of driving a motor vehicle
under the influence of alcohol or drugs, or both (DUI), within the
preceding 10 years, and certain specified circumstances are present,
including, but not limited to, the person is driving a vehicle when
the person has 0.10% or more concentration of alcohol, by weight, in
his or her blood.
This bill would change the above circumstance of when a police
officer may immediately cause removal and seizure of the vehicle to
where the person is driving a vehicle when the person has 0.08% or
more concentration of alcohol, by weight, in his or her blood, as
measured by a preliminary alcohol screening test or chemical test.
(2)
(1) Existing law requires that if a person has been
convicted of a first offense DUI, without causing bodily injury to
another, and is granted probation, that person is subject to certain
conditions of the probation. In a county where the board of
supervisors has approved a licensed driving-under-the-influence
program, as defined, existing law requires the court to refer that
person to participate in a licensed driving-under-the-influence
program for at least 3 months, if the person's blood alcohol
concentration was less than 0.20%, by weight, or for at least 9
months if the person's blood alcohol concentration was more than
0.20%, by weight, or that person refused to take a chemical test.
This bill would reduce the level of blood alcohol concentration
required for the referral to participate in a licensed
driving-under-the-influence program, where the person is otherwise
eligible, to less than 0.15%, by weight, for the program of at least
3 months and to more than 0.15%, by weight, for the program of at
least 9 months.
(3)
(2) Existing law requires that if a person has been
convicted of a first offense DUI, causing bodily injury to another,
and is granted probation, that person is subject to certain
conditions of the probation. In a county where the board of
supervisors has approved a driving-under-the-influence program, as
defined, existing law requires the court to refer that person to
participate in a licensed driving-under-the-influence program for at
least 3 months, if the person's blood alcohol concentration was less
than 0.20%, by weight, or for at least 9 months if the person's blood
alcohol concentration was more than 0.20%, by weight, or that person
refused to take a chemical test.
This bill would reduce the level of blood alcohol concentration
required for the referral to participate in a licensed
driving-under-the-influence program, where the person is otherwise
eligible, to less than 0.15%, by weight, for the program of at least
3 months and to more than 0.15%, by weight, for the program of at
least 9 months.
To the extent this bill would increase the level of services
required to be provided by county probation officers in monitoring
the program participation, the bill would impose a state-mandated
local program.
(4)
(3) Existing law authorizes the court to require a
person convicted of a first offense of driving-under-the-influence,
with or without injuring another person, to install a certified
ignition interlock device on any vehicle that the person owns or
operates and prohibits that person from operating a motor vehicle
unless it is equipped with a functioning device. The court is
required to give heightened consideration in applying the sanction
to, among other things, a first offense violator with a blood alcohol
concentration of 0.20% or more, by weight, at the time of his or her
arrest.
This bill would reduce the amount of blood alcohol concentration
that the court would be required to give heightened consideration in
applying the sanction, to 0.15% or more, by weight, at the time of
his or her arrest.
(5)
(4) The California Constitution requires the state to
reimburse local agencies and school districts for certain costs
mandated by the state. Statutory provisions establish procedures for
making that reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 14602.8 of the Vehicle Code
is amended to read:
14602.8. (a) (1) If a peace officer determines that a person has
been convicted of a violation of Section 23140, 23152, or 23153, that
the violation occurred within the preceding 10 years, and that one
or more of the following circumstances applies to that person, the
officer may immediately cause the removal and seizure of the vehicle
that the person was driving, under either of the following
circumstances:
(A) The person was driving a vehicle when the person had 0.08
percent or more, by weight, of alcohol in his or her blood, as
measured by a preliminary alcohol screening test or chemical test.
(B) The person driving the vehicle refused to submit to or
complete a chemical test requested by the peace officer.
(2) A vehicle impounded pursuant to paragraph (1) shall be
impounded for the following period of time:
(A) Five days, if the person has been convicted once of violating
Section 23140, 23152, or 23153, and the violation occurred within the
preceding 10 years.
(B) Fifteen days, if the person has been convicted two or more
times of violating Section 23140, 23152, or 23153, or any combination
thereof, and the violations occurred within the preceding 10 years.
(3) Within two working days after impoundment, the impounding
agency shall send a notice by certified mail, return receipt
requested, to the legal owner of the vehicle, at the address obtained
from the department, informing the owner that the vehicle has been
impounded. Failure to notify the legal owner within two working days
shall prohibit the impounding agency from charging for more than five
days' impoundment when the legal owner redeems the impounded
vehicle. The impounding agency shall maintain a published telephone
number that provides information 24 hours a day regarding the
impoundment of vehicles and the rights of a registered owner to
request a hearing.
(b) The registered and legal owner of a vehicle that is removed
and seized under subdivision (a) or his or her agent shall be
provided the opportunity for a storage hearing to determine the
validity of, or consider any mitigating circumstances attendant to,
the storage, in accordance with Section 22852.
(c) Any period during which a vehicle is subjected to storage
under this section shall be included as part of the period of
impoundment ordered by the court under Section 23594.
(d) (1) The impounding agency shall release the vehicle to the
registered owner or his or her agent prior to the end of the
impoundment period under any of the following circumstances:
(A) When the vehicle is a stolen vehicle.
(B) When the vehicle is subject to bailment and is driven by an
unlicensed employee of a business establishment, including a parking
service or repair garage.
(C) When the driver of the vehicle is not the sole registered
owner of the vehicle and the vehicle is being released to another
registered owner of the vehicle who agrees not to allow the driver to
use the vehicle until after the end of the impoundment period.
(2) A vehicle shall not be released pursuant to this subdivision
without presentation of the registered owner's or agent's currently
valid driver's license to operate the vehicle and proof of current
vehicle registration, or upon order of a court.
(e) The registered owner or his or her agent is responsible for
all towing and storage charges related to the impoundment, and any
administrative charges authorized under Section 22850.5.
(f) A vehicle removed and seized under subdivision (a) shall be
released to the legal owner of the vehicle or the legal owner's agent
prior to the end of the impoundment period if all of the following
conditions are met:
(1) The legal owner is a motor vehicle dealer, bank, credit union,
acceptance corporation, or other licensed financial institution
legally operating in this state, or is another person who is not the
registered owner and holds a security interest in the vehicle.
(2) The legal owner or the legal owner's agent pays all towing and
storage fees related to the seizure of the vehicle. A lien sale
processing fee shall not be charged to the legal owner who redeems
the vehicle prior to the 10th day of impoundment. The impounding
authority or any person having possession of the vehicle shall not
collect from the legal owner of the type specified in paragraph (1),
or the legal owner's agent any administrative charges imposed
pursuant to Section 22850.5 unless the legal owner voluntarily
requested a poststorage hearing.
(3) (A) The legal owner or the legal owner's agent presents either
lawful foreclosure documents or an affidavit of repossession for the
vehicle, and a security agreement or title showing proof of legal
ownership for the vehicle. All presented documents may be originals,
photocopies, or facsimile copies, or may be transmitted
electronically. The impounding agency shall not require a document to
be notarized. The impounding agency may require the agent of the
legal owner to produce a photocopy or facsimile copy of its
repossession agency license or registration issued pursuant to
Chapter 11 (commencing with Section 7500) of Division 3 of the
Business and Professions Code, or to demonstrate, to the satisfaction
of the impounding agency, that the agent is exempt from licensure
pursuant to Section 7500.2 or 7500.3 of the Business and Professions
Code.
(B) Administrative costs authorized under subdivision (a) of
Section 22850.5 shall not be charged to the legal owner of the type
specified in paragraph (1), who redeems the vehicle unless the legal
owner voluntarily requests a poststorage hearing. A city, county,
city or county, or state agency shall not require a legal owner or a
legal owner's agent to request a poststorage hearing as a requirement
for release of the vehicle to the legal owner or the legal owner's
agent. The impounding agency shall not require any documents other
than those specified in this paragraph. The impounding agency shall
not require any documents to be notarized.
(C) As used in this paragraph, "foreclosure documents" means an
"assignment" as that term is defined in subdivision (o) of Section
7500.1 of the Business and Professions Code.
(g) (1) A legal owner or the legal owner's agent who obtains
release of the vehicle pursuant to subdivision (f) may not release
the vehicle to the registered owner of the vehicle or any agents of
the registered owner, unless the registered owner is a rental car
agency, until after the termination of the impoundment period.
(2) The legal owner or the legal owner's agent shall not
relinquish the vehicle to the registered owner until the registered
owner or that owner's agent presents his or her valid driver's
license or valid temporary driver's license to the legal owner or the
legal owner's agent. The legal owner or the legal owner's agent
shall make every reasonable effort to ensure that the license
presented is valid.
(3) Prior to relinquishing the vehicle, the legal owner may
require the registered owner to pay all towing and storage charges
related to the impoundment and any administrative charges authorized
under Section 22850.5 that were incurred by the legal owner in
connection with obtaining custody of the vehicle.
(h) (1) A vehicle removed and seized under subdivision (a) shall
be released to a rental car agency prior to the end of the
impoundment period if the agency is either the legal owner or
registered owner of the vehicle and the agency pays all towing and
storage fees related to the seizure of the vehicle.
(2) The owner of a rental vehicle that was seized under this
section may continue to rent the vehicle upon recovery of the
vehicle. However, the rental car agency shall not rent another
vehicle to the driver of the vehicle that was seized until the
impoundment period has expired.
(3) The rental car agency may require the person to whom the
vehicle was rented to pay all towing and storage charges related to
the impoundment and any administrative charges authorized under
Section 22850.5 that were incurred by the rental car agency in
connection with obtaining custody of the vehicle.
(i) Notwithstanding any other provision of this section, the
registered owner, and not the legal owner, shall remain responsible
for any towing and storage charges related to the impoundment, any
administrative charges authorized under Section 22850.5, and any
parking fines, penalties, and administrative fees incurred by the
registered owner.
(j) The impounding agency is not liable to the registered owner
for the improper release of the vehicle to the legal owner or the
legal owner's agent provided the release complies with this section.
SEC. 2. SECTION 1. Section 23538 of
the Vehicle Code is amended to read:
23538. (a) (1) If the court grants probation to a
person punished under Section 23536, in addition to the provisions of
Section 23600 and any other terms and conditions imposed by the
court, the court shall impose as a condition of probation that the
person pay a fine of at least three hundred ninety dollars ($390),
but not more than one thousand dollars ($1,000). The court may also
impose, as a condition of probation, that the person be confined in a
county jail for at least 48 hours, but not more than six months.
(2) The person's privilege to operate a motor vehicle shall be
suspended by the department under paragraph (1) of subdivision (a) of
Section 13352 or Section 13352.1. The court shall require the person
to surrender the driver's license to the court in accordance with
Section 13550.
(3) Whenever, when considering the circumstances taken as a whole,
the court determines that the person punished under this section
would present a traffic safety or public safety risk if authorized to
operate a motor vehicle during the period of suspension imposed
under paragraph (1) of subdivision (a) of Section 13352 or Section
13352.1, the court may disallow the issuance of a restricted driver's
license required under Section 13352.4.
(b) In any county where the board of supervisors has approved, and
the State Department of Alcohol and Drug Programs has licensed, a
program or programs described in Section 11837.3 of the Health and
Safety Code, the court shall also impose as a condition of probation
that the driver shall enroll and participate in, and successfully
complete a driving-under-the-influence program, licensed pursuant to
Section 11836 of the Health and Safety Code, in the driver's county
of residence or employment, as designated by the court. For the
purposes of this subdivision, enrollment in, participation in, and
completion of an approved program shall be subsequent to the date of
the current violation. Credit may not be given for any program
activities completed prior to the date of the current violation.
(1) The court shall refer a first offender whose blood-alcohol
concentration was less than 0.15 percent, by weight, to participate
for at least three months or longer, as ordered by the court, in a
licensed program that consists of at least 30 hours of program
activities, including those education, group counseling, and
individual interview sessions described in Chapter 9 (commencing with
Section 11836) of Part 2 of Division 10.5 of the Health and Safety
Code.
(2) The court shall refer a first offender whose blood-alcohol
concentration was 0.15 percent or more, by weight, or who refused to
take a chemical test, to participate for at least nine months or
longer, as ordered by the court, in a licensed program that consists
of at least 60 hours of program activities, including those
education, group counseling, and individual interview sessions
described in Chapter 9 (commencing with Section 11836) of Part 2 of
Division 10.5 of the Health and Safety Code.
(3) The court shall advise the person at the time of sentencing
that the driving privilege shall not be restored until proof
satisfactory to the department of successful completion of a
driving-under-the-influence program of the length required under this
code that is licensed pursuant to Section 11836 of the Health and
Safety Code has been received in the department's headquarters.
(c) (1) The court shall revoke the person's probation pursuant to
Section 23602, except for good cause shown, for the failure to enroll
in, participate in, or complete a program specified in subdivision
(b).
(2) The court, in establishing reporting requirements, shall
consult with the county alcohol program administrator. The county
alcohol program administrator shall coordinate the reporting
requirements with the department and with the State Department of
Alcohol and Drug Programs. That reporting shall ensure that all
persons who, after being ordered to attend and complete a program,
may be identified for either (A) failure to enroll in, or failure to
successfully complete, the program, or (B) successful completion of
the program as ordered.
SEC. 3. SEC. 2. Section 23556 of the
Vehicle Code is amended to read:
23556. (a) (1) If the court grants probation to any person
punished under Section 23554, in addition to the provisions of
Section 23600 and any other terms and conditions imposed by the
court, the court shall impose as a condition of probation that the
person be confined in the county jail for at least five days but not
more than one year and pay a fine of at least three hundred ninety
dollars ($390) , but not more than one thousand dollars
($1,000).
(2) The person's privilege to operate a motor vehicle shall be
suspended by the department under paragraph (2) of subdivision (a) of
Section 13352. The court shall require the person to surrender the
driver's license to the court in accordance with Section 13550.
(b) (1) In a county where the county alcohol program administrator
has certified, and the board of supervisors has approved, a program
or programs, the court shall also impose as a condition of probation
that the driver shall participate in, and successfully complete, an
alcohol and other drug education and counseling program, established
pursuant to Section 11837.3 of the Health and Safety Code, as
designated by the court.
(2) In any county where the board of supervisors has approved and
the State Department of Alcohol and Drug Programs has licensed an
alcohol and other drug education and counseling program, the court
shall also impose as a condition of probation that the driver enroll
in, participate in, and successfully complete, a
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, in the driver's county of
residence or employment, as designated by the court. For the purposes
of this paragraph, enrollment in, participation in, and completion
of, an approved program shall be subsequent to the date of the
current violation. Credit may not be given to any program activities
completed prior to the date of the current violation.
(3) The court shall refer a first offender whose blood-alcohol
concentration was less than 0.15 percent, by weight, to participate
for three months or longer, as ordered by the court, in a licensed
program that consists of at least 30 hours of program activities,
including those education, group counseling, and individual interview
sessions described in Chapter 9 (commencing with Section 11836) of
Part 2 of Division 10.5 of the Health and Safety Code.
(4) The court shall refer a first offender whose blood-alcohol
concentration was 0.15 percent or more, by weight, or who refused to
take a chemical test, to participate for nine months or longer, as
ordered by the court, in a licensed program that consists of at least
60 hours of program activities, including those education, group
counseling, and individual interview sessions described in Chapter 9
(commencing with Section 11836) of Part 2 of Division 10.5 of the
Health and Safety Code.
(c) (1) The court shall revoke the person's probation pursuant to
Section 23602, except for good cause shown, for the failure to enroll
in, participate in, or complete a program specified in subdivision
(b).
(2) The court, in establishing reporting requirements, shall
consult with the county alcohol program administrator. The county
alcohol program administrator shall coordinate the reporting
requirements with the department and with the Department of Alcohol
and Drug Programs. That reporting shall ensure that all persons who,
after being ordered to attend and complete a program, may be
identified for either (A) failure to enroll in, or failure to
successfully complete, the program, or (B) successful completion of
the program as ordered.
(d) The court shall advise the person at the time of sentencing
that the driving privilege shall not be restored until the person has
provided proof satisfactory to the department of successful
completion of a driving-under-the-influence program of the length
required under this code that is licensed pursuant to Section 11836
of the Health and Safety Code.
SEC. 4. SEC. 3. Section 23575 of the
Vehicle Code is amended to read:
23575. (a) (1) In addition to any other provisions of law, the
court may require that a person convicted of a first offense
violation of Section 23152 or 23153 to install a certified ignition
interlock device on any vehicle that the person owns or operates and
prohibit that person from operating a motor vehicle unless that
vehicle is equipped with a functioning, certified ignition interlock
device. The court shall give heightened consideration to applying
this sanction to a first offense violator with 0.15 percent or more,
by weight, of alcohol in his or her blood at arrest, or with two or
more prior moving traffic violations, or to persons who refused the
chemical tests at arrest. If the court orders the ignition interlock
device restriction, the term shall be determined by the court for a
period not to exceed three years from the date of conviction. The
court shall notify the Department of Motor Vehicles, as specified in
subdivision (a) of Section 1803, of the terms of the restrictions in
accordance with subdivision (a) of Section 1804. The Department of
Motor Vehicles shall place the restriction in the person's records in
the Department of Motor Vehicles.
(2) The court shall require a person convicted of a violation of
Section 14601.2 to install an ignition interlock device on any
vehicle that the person owns or operates and prohibit the person from
operating a motor vehicle unless the vehicle is equipped with a
functioning, certified ignition interlock device. The term of the
restriction shall be determined by the court for a period not to
exceed three years from the date of conviction. The court shall
notify the Department of Motor Vehicles, as specified in subdivision
(a) of Section 1803, of the terms of the restrictions in accordance
with subdivision (a) of Section 1804. The Department of Motor
Vehicles shall place the restriction in the person's records in the
Department of Motor Vehicles.
(b) The court shall include on the abstract of conviction or
violation submitted to the Department of Motor Vehicles under Section
1803 or 1816, the requirement and term for the use of a certified
ignition interlock device. The records of the department shall
reflect mandatory use of the device for the term ordered by the
court.
(c) The court shall advise the person that installation of an
ignition interlock device on a vehicle does not allow the person to
drive without a valid driver's license.
(d) A person whose driving privilege is restricted by the court
pursuant to this section shall arrange for each vehicle with an
ignition interlock device to be serviced by the installer at least
once every 60 days in order for the installer to recalibrate and
monitor the operation of the device. The installer shall notify the
court if the device is removed or indicates that the person has
attempted to remove, bypass, or tamper with the device, or if the
person fails three or more times to comply with any requirement for
the maintenance or calibration of the ignition interlock device.
There is no obligation for the installer to notify the court if the
person has complied with all of the requirements of this article.
(e) The court shall monitor the installation and maintenance of
any ignition interlock device restriction ordered pursuant to
subdivision (a) or (). If a person fails to comply with the court
order, the court shall give notice of the fact to the department
pursuant to Section 40509.1.
(f) (1) Pursuant to Section 13352, if a person is convicted of a
violation of Section 23152 or 23153, and the offense occurred within
10 years of one or more separate violations of Section 23152 or 23153
that resulted in a conviction, the person may apply to the
Department of Motor Vehicles for a restricted driver's license
pursuant to Section 13352 that prohibits the person from operating a
motor vehicle unless that vehicle is equipped with a functioning
ignition interlock device, certified pursuant to Section 13386. The
restriction shall remain in effect for at least the remaining period
of the original suspension or revocation and until all reinstatement
requirements in Section 13352 are met.
(2) Pursuant to subdivision (g), the Department of Motor Vehicles
shall immediately terminate the restriction issued pursuant to
Section 13352 and shall immediately suspend or revoke the privilege
to operate a motor vehicle of a person who attempts to remove,
bypass, or tamper with the device, who has the device removed prior
to the termination date of the restriction, or who fails three or
more times to comply with any requirement for the maintenance or
calibration of the ignition interlock device ordered pursuant to
Section 13352. The privilege shall remain suspended or revoked for
the remaining period of the originating suspension or revocation and
until all reinstatement requirements in Section 13352 are met.
(g) A person whose driving privilege is restricted by the
Department of Motor Vehicles pursuant to Section 13352 shall arrange
for each vehicle with an ignition interlock device to be serviced by
the installer at least once every 60 days in order for the installer
to recalibrate the device and monitor the operation of the device.
The installer shall notify the Department of Motor Vehicles if the
device is removed or indicates that the person has attempted to
remove, bypass, or tamper with the device, or if the person fails
three or more times to comply with any requirement for the
maintenance or calibration of the ignition interlock device. There is
no obligation on the part of the installer to notify the department
or the court if the person has complied with all of the requirements
of this section.
(h) Nothing in this section permits a person to drive without a
valid driver's license.
(i) The Department of Motor Vehicles shall include information
along with the order of suspension or revocation for repeat offenders
informing them that after a specified period of suspension or
revocation has been completed, the person may either install an
ignition interlock device on any vehicle that the person owns or
operates or remain with a suspended or revoked driver's license.
(j) Pursuant to this section, an out-of-state resident who
otherwise would qualify for an ignition interlock device restricted
license in California shall be prohibited from operating a motor
vehicle in California unless that vehicle is equipped with a
functioning ignition interlock device. An ignition interlock device
is not required to be installed on any vehicle owned by the defendant
that is not driven in California.
(k) If a person has a medical problem that does not permit the
person to breathe with sufficient strength to activate the device,
then that person shall only have the suspension option.
() This section does not restrict a court from requiring
installation of an ignition interlock device and prohibiting
operation of a motor vehicle unless that vehicle is equipped with a
functioning, certified ignition interlock device for a person to whom
subdivision (a) or (b) does not apply. The term of the restriction
shall be determined by the court for a period not to exceed three
years from the date of conviction. The court shall notify the
Department of Motor Vehicles, as specified in subdivision (a) of
Section 1803, of the terms of the restrictions in accordance with
subdivision (a) of Section 1804. The Department of Motor Vehicles
shall place the restriction in the person's records in the Department
of Motor Vehicles.
(m) For the purposes of this section, "vehicle" does not include a
motorcycle until the state certifies an ignition interlock device
that can be installed on a motorcycle. Any person subject to an
ignition interlock device restriction shall not operate a motorcycle
for the duration of the ignition interlock device restriction period.
(n) For the purposes of this section, "owned" means solely owned
or owned in conjunction with another person or legal entity. For
purposes of this section, "operates" includes operating vehicles that
are not owned by the person subject to this section.
(o) For the purposes of this section, "bypass" includes, but is
not limited to, either of the following:
(1) Any combination of failing or not taking the ignition
interlock device rolling retest three consecutive times.
(2) Any incidence of failing or not taking the ignition interlock
device rolling retest, when not followed by an incidence of passing
the ignition interlock rolling retest prior to turning off the
vehicle's engine.
SEC. 5. SEC. 4. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.