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.
***************