BILL ANALYSIS                                                                                                                                                                                                    

                           Senator Gloria Romero, Chair              A
                             2007-2008 Regular Session               B
          AB 1487 (Berryhill)                                        7
          As Amended April 24, 2007 
          Hearing date:  June 26, 2007
          Vehicle Code

                         VEHICLES: DRIVING UNDER THE INFLUENCE  


          Source:  California Highway Patrol

          Prior Legislation: AB 571 (Levine) - Chapter 89, Statutes 2005
                       AB 1353 (Liu) - Chapter 164, Statutes 2005 
                       SB 1697 (Torlakson) - Ch. 551, Statutes 2004
                                  AB 1026 (Levine) - failed Senate Public  
          Safety, 2004

          Support: California State Automobile Association; Peace Officers  
                   Research Association of California; San Bernardino  
                   County Sheriff; California District Attorneys  

          Opposition:California Attorneys for Criminal Justice; California  
          DUI Lawyers Association

          Assembly Floor Vote:  Ayes 76 - Noes 0

                                         KEY ISSUE



                                                        AB 1487 (Berryhill)



          The purpose of this bill is to lower the blood alcohol level  
          from .20% to .15% at which a first time drunk-driving offender  
          is required to attend a 9-month Drinker Driver Treatment  
           Existing law  provides it is unlawful for any person who is under  
          the influence of any alcoholic beverage or drug, or under the  
          combined influence of any alcoholic beverage and drug, to drive  
          a vehicle.  (Vehicle Code  23152(a).)  

          Existing law  provides that it is unlawful for any person, while  
          having 0.08 percent or more, by weight, of alcohol in his or her  
          blood to drive a vehicle.  (Vehicle Code  2152(b).)

           Existing law  provides that a person who is convicted of a first  
          DUI is subject to the following penalties when given probation:
                 Possible 48 hours to 6 months in jail. 
                 $390 to $1,000 fine plus 250% penalty assessments.
                 Completion of a 3-month treatment program or a 9-month  
               program if the BAC was .20% or more.
                 6 month license suspension or 10 month suspension if 9  
               month program is ordered. 
                 Restricted license may be sought upon proof of  
               enrollment or completion of program, proof of financial  
               responsibility and payment of fees.  However, the court may  
               disallow the restricted license.  (Vehicle Code  13352  
               (a)(1); 13352.1; 13352.4; 23538(a)(3).)

           Existing law  provides additional penalties may also apply to a  
          person convicted of a first DUI including:
                 Restitution fine of $100-$1,000 and restitution to the  
               victims or Restitution Fund.  (Penal Code  1202.4.)
                 The court may impound vehicle for up to 30 days.   
               (Vehicle Code  23594.)
                 The court may require the defendant install an ignition  



                                                        AB 1487 (Berryhill)

               interlock device for a period not to exceed 3 years.   
               Heightened consideration should be given if a defendant's  
               BAC was .20% or more, if the defendant refused a chemical  
               test at arrest, or if he or she has two or more prior  
               moving traffic violations.  (Vehicle Code  23575.)
                 If a person refused to take the BAC test, 48 hours in  
               county jail is mandatory.
                 A commercial driver will be prohibited from operating a  
               commercial vehicle for one year.  (Vehicle Code   
               15300(a)(1) and (2).)
                 If the defendant is under 21, the court shall order an  
               additional 1 year suspension or delay in issuance of  
               license.  (Vehicle Code  13202.5.)
                 If the defendant is under 18, the DMV shall revoke the  
               license until the person turns 18, for one year or for the  
               duration of any restriction, suspension, or revocation  
               otherwise specified, whichever is longer.  (Vehicle Code   
                 If there was minor passenger, then 10 days in county  
               jail whether or not probation is imposed.
                 If the defendant's speed exceeds the posted speed limit  
               by 30 mph on the freeway or 20 mph on any other street,  
               then an additional 60 consecutive days in jail.  (Vehicle  
               Code  23582.)
                 If the defendant had a prior DUI that is more than 10  
               years old or a conviction for drunk in public, the  
               defendant must be ordered into an alcohol or drug problem  
               assessment program.  (Vehicle Code  23646(b)(3).)
           Existing law  provides that a person who is convicted of a first  
          DUI with injury is subject to the following penalties:
                 16 months, 2 or 3 years in state prison or 90 days to 1  
               year in county jail.
                 $390 to $1,000 fine plus 250% penalty assessments.
                 1 year driver's license suspension.
            Or when probation is given:
                 5 days to one year in jail.
                 $390 to $1,000 fine plus 250% penalty assessments.
                 1 year license suspension.
                 3 month treatment program or a 9-month program if the  



                                                        AB 1487 (Berryhill)

               BAC was .20% or more. 
                 The additional penalties that apply to a 1st DUI without  
               injury.  (Vehicle Code  23554.)
          Existing law  provides that in addition to any other penalties,  
          the court shall consider the fact that a person is convicted of  
          DUI with a BAC of .15% or more or the refusal to take a chemical  
          test, a factor that may justify enhancing the penalties in  
          sentencing, in determining whether to grant probation and if  
          probation is granted, in determining additional or enhanced  
          terms and conditions of probation.  (Vehicle Code  23578.)
          This bill  provides instead that a person convicted of a 1st DUI  
          with a BAC of .15% or more shall be required to attend the  
          9-month Drinker Driver Treatment Program.
          California currently faces an extraordinary and severe prison  
          and jail overcrowding crisis.  California's prison capacity is  
          nearly exhausted as prisons today are being operated with a  
          significant level of overcrowding. <1>  In addition,  
          California's jails likewise are significantly overcrowded.   
          Twenty California counties are operating under jail population  
          caps.  According to the State Sheriffs' Association, "counties  
          are currently releasing 18,000 pre and post-sentenced inmates  
          every month and many counties are so overcrowded they do not  
          accept misdemeanor bookings in any form, . . . ." <2>  In  
          January of this year the Legislative Analyst's office summarized  
          the trajectory of California's inmate population over the last  
          two decades:

              During the past 20 years, jail and prison  
              populations have increased significantly.  County  
              jail populations have increased by about 66  
          <1>  Analysis of the 2007-08 Budget Bill:  Judicial and Criminal  
          Justice, Legislative Analyst's Office (February 21, 2007).
          <2>  Memorandum from CSSA President Gary Penrod to Governor,  
          February 14, 2007.



                                                        AB 1487 (Berryhill)

              percent over that period, an amount that has been  
              limited by court-ordered population caps.  The  
              prison population has grown even more dramatically  
              during that period, tripling since the  

          The level of overcrowding, and the impact of the population  
          crisis on the day-to-day prison operations, is staggering:

              As of December 31, 2006, the California Department  
              of Corrections and Rehabilitation (CDCR) was  
              estimated to have 173,100 inmates in the state  
              prison system, based on CDCR's fall 2006  
              population projections.  However, . . . the  
              department only operates or contracts for a total  
              of 156,500 permanent bed capacity (not including  
              out-of-state beds, . . . ), resulting in a  
              shortfall of about 16,600 prison beds relative to  
              the inmate population.  The most significant bed  
              shortfalls are for Level I, II, and IV inmates, as  
              well as at reception centers.  As a result of the  
              bed deficits, CDCR houses about 10 percent of the  
              inmate population in temporary beds, such as in  
              dayrooms and gyms.  In addition, many inmates are  
              housed in facilities designed for different  
              security levels.  For example, there are currently  
              about 6,000 high security (Level IV) inmates  
              housed in beds designed for Level III inmates.

              . . .  (S)ignificant overcrowding has both  
              operational and fiscal consequences.  Overcrowding  
              and the use of temporary beds create security  
              concerns, particularly for medium- and  
              high-security inmates.  Gyms and dayrooms are not  
              designed to provide security coverage as well as  
              in permanent housing units, and overcrowding can  
              contribute to inmate unrest, disturbances, and  
              assaults.  This can result in additional state  

          <3>  California's Criminal Justice System:  A Primer.   
          Legislative Analyst's Office (January 2007).



                                                        AB 1487 (Berryhill)

              costs for medical treatment, workers'  
              compensation, and staff overtime.  In addition,  
              overcrowding can limit the ability of prisons to  
              provide rehabilitative, health care, and other  
              types of programs because prisons were not  
              designed with sufficient space to provide these  
              services to the increased population.  The  
              difficulty in providing inmate programs and  
              services is exacerbated by the use of program  
              space to house inmates.  Also, to the extent that  
              inmate unrest is caused by overcrowding,  
              rehabilitation programs and other services can be  
              disrupted by the resulting lockdowns.<4>

          As a result of numerous lawsuits, the state has entered into  
          several consent decrees agreeing to improve conditions in the  
          state's prisons.  As these cases have continued over the past  
          several years, prison conditions nonetheless have failed to  
          improve and, over the last year, the scrutiny of the federal  
          courts over California's prisons has intensified.

          In February of 2006, the federal court appointed a receiver to  
          take over the direct management and operation of the prison  
          medical health care delivery system from the state.   Motions  
          filed in December of 2006 are now pending before three federal  
          court judges in which plaintiffs are seeking a court-ordered  
          limit on the prison population pursuant to the federal Prison  
          Litigation Reform Act.  Medical, mental health and dental care  
          programs at CDCR each are "currently under varying levels of  
          federal court supervision based on court rulings that the state  
          has failed to provide inmates with adequate care as required  
          under the Eighth Amendment to the U.S. Constitution.  The courts  
          found key deficiencies in the state's correctional programs,  
          including:  (1) an inadequate number of staff to deliver health  
          care services, (2) an inadequate amount of clinical space within  
          prisons, (3) failures to follow nationally recognized health  
          care guidelines for treating inmate-patients, and (4) poor  

          <4>  Analysis 2007-08 Budget Bill, supra, fn. 1.



                                                        AB 1487 (Berryhill)

          coordination between health care staff and custody staff."<5>

           This bill  will not aggravate the prison and jail overcrowding  
          crisis outlined above.


          1.  Need for This Bill  

          According to the author:

              Current law requires a first time DUI offender with a  
              BAC under.20 percent to participate in an alcohol  
              treatment program for at least three months and a first  
              time DUI offender with a BAC over .20 percent to  
              participate in an alcohol treatment program for at least  
              nine months.  This bill would require a first time DUI  
              offender with a BAC under .15 percent to participate in  
              an alcohol treatment program for at least three moths  
              and a first time offender with a BAC over .15% to  
              participate in an alcohol treatment program for at least  
              nine months.  A BAC of .15% should be used because it  
              has been determined to be the median BAC level for  
              persons arrested for DUI.  Using a BAC of .15 percent  
              would also conform the treatment enhancement sections of  
              the Vehicle Code with the penalty enhancement sections  
              of the Vehicle Code.  Under Current law, most DUI  
              penalty enhancement provisions use .15% BAC. DUI  
              treatment is an essential component to preventing  
              subsequent DUI offenses and the BAC level used to  
              determine enhanced treatment should mirror the BAC level  
              used for DUI penalty enhancements.  Finally, using a BAC  
              of .15 percent would also bring California law in line  
              with National Highway Traffic Safety Administration  
              recommendations for high BACs.

          <5>  Primer, supra fn. 4.



                                                        AB 1487 (Berryhill)

          2.  Lowering BAC for Required Longer Program  

          AB 1353 (Liu) Chapter 164, Statutes 2005, provided that a court  
          shall order a first offender with a BAC of .20% or above to  
          attend a 9-month treatment program instead of a 3-month  
          treatment program.  Because a person cannot get their license  
          reinstated until the program is completed, this also extended  
          the period of the license suspension or restriction for these  
          offenders.  Prior to that bill a court could order the longer  
          program in appropriate circumstances because the law  
          specifically stated that a BAC of .20% could be considered as a  
          factor to justify such an enhancement.  AB 571 (Levine) Chapter  
          89, Statutes 2005, changed the BAC a court may consider a factor  
          to justify an enhancement to .15%; and thus in appropriate  
          circumstances, a court can currently order the longer program  
          and thus longer license suspension or restriction when a person  
          had a  BAC between .15% and .20%.  This bill would remove that  
          discretion and instead mandate the longer program if a person  
          has a BAC of over .15%.

          3.  Evidence Shows that Longer Program Does not Effect the  
            Recidivism of High BAC 1st Offenders  

          For 16 years the Department of Motor Vehicles has produced an  
           Annual Report of California DUI Management Information System   
          which among other things evaluates the effectiveness of DUI  
          sanctions in California.

          In general, the 2007 report found that generally first time  
          offender recidivism rates still remain much lower than they were  
          10-15 years ago:

              The 1-year recidivism rates for all first offenders in  
              2004 continued to remain at the lower level of the past  
              six years. Comparing these rates to the much higher rate  
              of 1990, DUI reoffenses in 2004 were 40.1% lower than for  
              1990's first offenders (DMV, 2007 Annual Report of the  
              California DUI Management Information System, p. 37;  



                                                        AB 1487 (Berryhill)


          As noted in the author's statement, the average BAC was .15% in  
          2004 which was slightly down from the prior years.  (DMV, Id. at  
          p. iv)

          Specifically, consistent with past reports, the 2007 report  
          found that sending a person with a higher BAC to a longer  
          drinker driver treatment program does not have significant  
          impact on recidivism rates:

              DUI Incidents: Similar to the last two year's results,  
              [the data] indicate that, among first DUI offenders, the  
              3-month program participants have significantly (p =  
              .0001) fewer DUI incidents in the one year following  
              their assignment to the alcohol-education programs than  
              do the 6-month program participants.  This finding is  
              consistent with the last four years' evaluations of  
              subsequent DUI incidents.  The reoffense rate of the  
              3-month program participants is 28.8% lower than that of  
              the 6-month participants.  Again, this finding is not  
              surprising given that those assigned to the longer-term  
              program have higher BAC levels (.20% and above), and  
              would be more likely to recidivate than those with lower  
              BAC levels. 

              In order to determine whether BAC level was a major  
              factor in the outcome of the previous analysis, two  
              further subanalyses were conducted to investigate this  
              possibility.  Among first offenders assigned to the  
              6-month program, 33% actually had BAC levels below .20  
              and 67% had BAC levels .20 and above.  This difference  
              in BAC levels allowed for conducting additional analyses  
              comparing the outcome measures between those with BAC  
              levels below .20 and those with BAC levels .20 and  
              above.  A second subanalysis was conducted comparing  
              3-month versus 6-month alcohol treatment program effects  
              for those with BAC levels of .20 and above. There were a  
              sufficient number of drivers who had BAC levels of .20  
              and above who were assigned to the 3-month program to  



                                                        AB 1487 (Berryhill)

              allow for this second comparison.  The results of these  
              additional subanalyses are described below. 

              Results of the Evaluation of the 6-Month Alcohol  
              Education Programs for First DUI Offenders with BAC  
              Levels Below .20 Versus .20 and Above 
                   Total Crashes and DUI Incidents: [The data] shows  
                the results of the effects of the 6-month alcohol  
                treatment program on crashes and DUI incidents for two  
                groups: 1) those with BAC levels below .20 and, 2)  
                those with BAC levels of .20 and above. As evident in  
                [the data] differences in crash rates between the two  
                groups were not significant. Therefore, regardless of  
                differences in BAC levels, the 6-month alcohol program  
                did not have an impact on the two groups relative to  
                subsequent 1-year crashes. (DMV, Id at p60 (tables  
                omitted; emphasis added))

              Results of the Evaluation of the 3-Month and 6-Month  
              Alcohol Education Programs for First DUI Offenders with  
              BAC Levels of .20 and Above 
                   Total Crashes and DUI Incidents: As shown in Table  
                16d, and consistent with last year's results, the  
                length of time of alcohol treatment program for first  
                DUI offenders had no effect on those with BAC levels  
                of .20 and above on both outcome measures, 1-year  
                subsequent crashes and DUI incidents. Although the  
                crash and DUI incident rates for those attending the  
                3-month program are slightly lower than for those  
                attending the 6-month program, these differences were  
                not significant. Thus, with BAC level held constant,  
                the findings of this analysis indicate that the  
                extended 6-month alcohol treatment program has no  
                beneficial effect on first offenders with high BAC  
                levels on both subsequent 1-year crashes and DUI  
                incidents. While the results of the previous analysis  
                left unclear the relationship between recidivism and  
                length of program or BAC level, the findings from this  
                analysis more clearly indicate that extending the  
                program length for first offenders with high BAC  



                                                        AB 1487 (Berryhill)

                levels does not reduce subsequent 1-year crashes or  
                DUI incidents. (DMV, Id at p. 61-62(charts deleted,  
                emphasis added).)  
              The effectiveness of increasing the duration of time for  
              alcohol education/treatment programs has not been  
              supported in the literature.  DeYoung examined the  
              effectiveness of lengthening SB 38 alcohol treatment  
              programs from 12 to 18 months for second offenders and  
              found no evidence that the additional 6 months  
              contributed to reducing DUI recidivism (DeYoung, 1995).  
              ? (DMV, Id at p. 62.)  



          Although the data used in the 2007 report cited above was based  
          on 2004 data and thus prior to the effective date of the Liu  
          bill, the data is consistent with the studies DMV has completed  
          over the years. 

          An ongoing concern with DUI offenders is that a percentage of  
          those arrested and convicted "drop out" of the system.  They  
          never complete the required program and they never return to DMV  
          to have their license reinstated.  If they are still in  
          California, it is likely they are driving unlicensed and  
            uninsured.  The 2007 report indicates that "67.9% of first  
          offenders and 31.9% of second offenders completed their program  
          assignment" which is actually a slight increase over the prior  
          year but still indicates that a number of offenders "drop out."   
          (DMV, Id at p. 38)  Speculation has been made over the years  
          that some of the drop out that occurs because the high fines,  
          costs, and multiple sanctions involved with being convicted of a  
          DUI lead to people not completing one or more of the probation  
          requirements and not having their license reinstated.

          This bill would mandate an increase in the length of the program  
          when a person has a BAC of over .15% when there is no empirical  
          or other evidence to indicate that this longer program will have  
          any effect on recidivism.  In fact it could have the opposite  
          result and cause more people to drop out of the system because  
          it will result in increased cost and a tripling of the time of  
          the license suspension/restriction.  Currently the courts may  
          order the longer program in cases they feel are appropriate.   
          Thus in the cases where the court feels that a person with this  
          average BAC needs more attention, the court can impose the  
          longer program, which the data shows they did even before the  
          Liu and Levine bills took effect in 2006.





                                                        AB 1487 (Berryhill)



          4.  Opposition  

          The California Attorneys for Criminal Justice oppose this bill  
          for a number of reasons.  They assert:

              There is a substantial difference between a person with  
              a blood alcohol level of .20% and .15%. The former is  
              generally recognized as an excessive reading. However,  
              there is no justification for treating a blood alcohol  
              reading as low as .15% in the same manner.  There are no  
              studies or literature that would suggest that a reading  
              of .15% requires a nine month program.  Further, the  
              measure would take away judicial discretion and ability  
              of the trial court to sentence the person based on the  
              particular facts of each case.

              The public is well protected under currently law.   
              Anyone with a reading of less that .20% is required to  
              be placed on probation for a minimum of three years with  
              a required condition to complete a mandatory three month  
              alcohol program, and not to drive a vehicle with any  
              alcohol in their blood stream.