BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Gloria Romero, Chair A 2007-2008 Regular Session B 1 4 8 AB 1487 (Berryhill) 7 As Amended April 24, 2007 Hearing date: June 26, 2007 Vehicle Code MK:mc VEHICLES: DRIVING UNDER THE INFLUENCE HISTORY 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 Association Opposition:California Attorneys for Criminal Justice; California DUI Lawyers Association Assembly Floor Vote: Ayes 76 - Noes 0 KEY ISSUE SHOULD THE REQUIREMENT THAT A PERSON CONVICTED OF A DUI WITH A BLOOD ALCOHOL LEVEL OF .20% OR ABOVE ATTEND A LONGER ALCOHOL TREATMENT (More) AB 1487 (Berryhill) PageB PROGRAM BE LOWERED TO .15% OR ABOVE? PURPOSE 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 Program. 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 (More) AB 1487 (Berryhill) PageC 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 13352.3.) 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 (More) AB 1487 (Berryhill) PageD 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. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS 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. (More) AB 1487 (Berryhill) PageE 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 mid-1980s.<3> 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). (More) AB 1487 (Berryhill) PageF 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. (More) AB 1487 (Berryhill) PageG coordination between health care staff and custody staff."<5> This bill will not aggravate the prison and jail overcrowding crisis outlined above. COMMENTS 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. (More) AB 1487 (Berryhill) PageH 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; http://www.dmv.ca.gov/about/profile/rd/r_d_report/Section%2 (More) AB 1487 (Berryhill) PageI 05/222-2007_DUI_MIS_Report.pdf.) 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 (More) AB 1487 (Berryhill) PageJ 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 (More) AB 1487 (Berryhill) PageK 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.) (More) 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. SHOULD THE TRIGGER FOR THE MANDATORY LONGER PROGRAM FOR FIRST-TIME DUI BE REDUCED FROM .20% TO .15% WHEN THE DATA OVER THE YEARS HAS SHOWN THAT THE LONGER PROGRAMS HAVE NO SIGNIFICANT IMPACT ON RECIDIVISM? WHAT EFFECT WILL MANDATING THE LONGER PROGRAM ON THOSE WITH THE (More) AB 1487 (Berryhill) PageM AVERAGE BAC BE ON THE DROP OUT RATE? THE MANDATED LONGER PROGRAM TOOK EFFECT ONLY IN JANUARY OF 2006. IS IT APPROPRIATE TO REDUCE A JUDGE'S DISCRETION AGAIN SO SOON? 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. ***************