BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1882
                                                                  Page  1

          Date of Hearing:   April 15, 2008
          Counsel:        Kathleen Ragan


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Jose Solorio, Chair

                   AB 1882 (Garrick) - As Amended:  March 28, 2008
           

                                     FOR VOTE ONLY
           

          SUMMARY  :   Requires an arresting agency to notify the  
          appropriate federal agency if the arresting agency has reason to  
          believe a person arrested for driving under the influence (DUI)  
          of alcohol or drugs is an illegal alien.  Specifically,  this  
          bill  states that an arresting authority shall report to the  
          United States Immigration and Customs Enforcement (ICE) the  
          presence of an arrestee when both of the following occur:

          1)The arrestee is arrested for either a Vehicle Code Section  
            23152 violation (DUI) that caused property damage of over  
            $600, or a Vehicle Code Section 23153 violation (DUI with  
            bodily injury).

          2)The arrestee fails to provide the arresting authority with  
            appropriate documentation demonstrating his or her legal  
            presence in the United States.

           EXISTING LAW  :

          1)States that 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 or drug, to drive  
            a vehicle.  (Vehicle Code section 23152(a).)  

          2)Provides that it is unlawful for any person who has 0.08% or  
            more, by weight, of alcohol in his or her blood to drive a  
            vehicle.  (Vehicle Code section 23152(b).)  

          3)Provides that a first violation of DUI is punishable by  
            imprisonment in the county jail for not less than 96 hours, at  
            least 48 of which shall be continuous, nor more than six  
            months, and by a fine of not less than $390 nor more than  








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            $1,000.  (Vehicle Code section 23536(a).)

          4)States that if a person is convicted of a DUI violation and  
            the offense occurred with 10 years of a separate violation of  
            specified offenses, the person shall be punished by  
            imprisonment in the county jail for not less than 90 days nor  
            more than one year and a fine of not less than $390 nor more  
            than $1,000.  (Vehicle Code section 23540(a).)

          5)States that in any DUI prosecution, it is a rebuttable  
            presumption that the person had 0.08% or more, by weight, of  
            alcohol in his or her blood at the time of driving the vehicle  
            if the person had 0.08% or more, by weight, of alcohol in his  
            or her blood at the time of the performance of a chemical test  
            within three hours after the driving.  (Vehicle Code section  
            23152(b)(3).)

          6)Provides that it is unlawful for any person, while driving  
            under the influence of any alcoholic beverage or drug, or  
            under the combined influence of any alcoholic beverage and  
            drug, to drive a vehicle and concurrently do any act forbidden  
            by law, or neglect any duty imposed by law in driving the  
            vehicle, which act or neglect proximately causes bodily injury  
            to any person other than the driver.  (Vehicle Code section  
            23153(a).)

          7)States that it is unlawful for any person, while having 0.08%  
            or more, by weight, of alcohol in his or her blood to drive a  
            vehicle and concurrently do any act forbidden by law, or  
            neglect any duty imposed by law in driving the vehicle, which  
            act or neglect proximately causes bodily injury to any person  
            other than the driver.  (Vehicle Code section 23153(b).)

          8)Provides that any person convicted of a first offense of DUI  
            with bodily injury, that person shall be punished by  
            imprisonment in the state prison, or in a county jail, for not  
            less than 90 days nor more than one year, and by a fine of not  
            less than $390 nor more than $1,000.  (Vehicle Code section  
            23554.)

          9)Provides that a person who drives a motor vehicle is deemed to  
            have given consent to chemical testing of his or her blood or  
            breath for the purpose of determining the alcoholic content of  
            his or her blood if lawfully arrested for specified offenses.   
            (Vehicle Code section 23612(a)(1)(A).)








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          10)States that a person who drives a motor vehicle is deemed to  
            have given consent to chemical testing of his or her blood or  
            urine for the purpose of determining the drug content of his  
            or her blood if lawfully arrested for specified offenses.   
            (Vehicle Code section 23612(a)(1)(B).)

          11)States that if a person is lawfully arrested for driving  
            under the influence of any drug, or the combined influence of  
            alcohol and any drug, the person has the choice of whether the  
            test shall be of his or her blood, breath or urine and the  
            officer shall advise the person of that choice.  (Vehicle Code  
            section 23612(a)(2)(B).)

          12)Provides that a person who chooses to submit to a breath test  
            may also be requested to submit to a blood or urine test if  
            the officer has reasonable cause to believe that the person  
            was driving under the influence of a drug or the combined  
            influence of a drug and an alcoholic beverage and if the  
            officer has a clear indication that a blood or urine test will  
            reveal evidence of the person being under the influence.   
            (Vehicle Code section 23612(a)(2)(C).)

          13)Defines the term "alien" as "any person not a citizen or  
            national of the United States.  (8 U.S.C. Section 1101(a)(3).)

          14)States that "undocumented criminal alien" is defined as an  
            alien who (8 U.S.C. Section 1231(i)(3)):

             a)   Has been convicted of a felony or of two misdemeanors,  
               and,

             b)   Entered the United States without inspection at any time  
               or place other than as designated by the United States  
               Attorney General (AG);

               i)     Was the subject of exclusion or deportation  
                 proceedings at the time he or she was taken into custody  
                 by California; or,

               ii)    Was admitted as a non-immigrant and at the time he  
                 or she was taken into custody by California had failed to  
                 maintain the non-immigrant status in which the alien was  
                 admitted or to which it was changed, as specified, or to  
                 comply with the conditions or any such status.








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          15)Defines as inadmissible any alien convicted of acts which  
            constitute the essential elements of a crime involving moral  
            turpitude or a violation of any law or regulation of a State  
            related to a controlled substance, as defined in 21 U.S.C.  
            Section 802.  (8 U.S.C. section 1182(2)(A).) However, this law  
            provides exceptions to an alien who committed only one crime  
            if the crime was committed when the person was under 18 years  
            of age, and the crime was committed more than five years  
            before the application for a visa or other documentation, or  
            the maximum penalty possible for the crime of which the alien  
            was convicted did not exceed imprisonment for one year and, if  
            the alien was convicted of such crime, the alien was not  
            sentenced to a term of imprisonment in excess of six months.   
            (8 U.S.C. section 1182(A)(ii).)

          16)Describes the criminal offenses for which an alien is  
            deportable.  (8 U.S.C. section 1227(2)(A).)  Such crimes  
            include, but are not limited to:

             a)   Crimes of moral turpitude committed within five years of  
               admission to the United States, or 10 years in the case of  
               an alien provided lawful permanent resident status; crimes  
               for which a sentence of one year or longer may be imposed.   
               (8 U.S.C. section 1227(A)(i)(I)(II).)

             b)   Two or more crimes involving moral turpitude, regardless  
               of whether the alien was confined therefore, committed any  
               time after admission.  (8 U.S.C. section 1227(2)(A)(ii).)

             c)   Aggravated felony committed at any time.  (8 U.S.C.  
               section 1227(2)(A)(iii).)

             d)   High-speed flight.  (8 U.S.C. section 1227(2)(A)(iv).)

             e)   Failure to register as a sex offender.  (8 U.S.C.  
               section 1227(2)(A)(v).)

             f)   Conviction of any violation of controlled substance  
               laws, other than a single offense involving possession for  
               one's own use of 30 grams or less of marijuana.  (8 U.S.C.  
               section 1227(2)(B)(i).)

             g)   Certain firearms offenses.  (8 U.S.C. section  
               1227(2)(C).)








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             h)   Domestic violence, stalking, violation of protective  
               order, crimes against children, including child abuse,  
               child neglect, and child abandonment.  (8 U.S.C. section  
               1227(2)(E)(i).)

             i)   Failure to register and falsification of documents.  (8  
               U.S.C. section 1227(3).)

             j)   Security, terrorist activities, and foreign policy  
               basis.  (8 U.S.C. section 1227(4).)

             aa)  Voting in violation of any federal, state or local  
               constitutional provision, statute, or ordinance.  (8 U.S.C.  
               section 1227(6)(A).)

          17)Creates specified exceptions for removal of nonviolent  
            offenders prior to completion of their sentence of  
            imprisonment (8 U.S.C. section 1231(a)(4)(B)):  In the case of  
            an alien in the custody of a state, or a political subdivision  
            of a state, if the chief state official exercising authority  
            with respect to the incarceration of the alien determines that  
            the alien is confined for a non-violent offense, (with  
            specified exceptions); the removal is in the best interest of  
            the state, and submits a written request to the AG that such  
            alien be so removed.  (8 U.S.C. section 1231(4)(A)(ii).)

          18)Defines "crime of violence" in federal law as an offense that  
            has as an element the use, attempted use, or threatened use of  
            physical force against the person or property of another, or  
            any other offense that is a felony and that, by its nature,  
            involves a substantial risk that physical force against the  
            person or property of another may be used inn the course of  
            committing the offense.  (18 U.S.C. section 16.)

          19)States that no cause or claim may be asserted under 8 U.S.C.  
            section 1231(4) against any official of the United States or  
            of any state to compel the release, removal, or consideration  
            for release or removal of any alien.  (8 U.S.C. section  
            1231(a)(4)(D).)

          20)Provides that any alien who has been denied admission to the  
            United States, excluded, deported or removed, or who has  
            departed the United States while an order of exclusion,  
            deportation or removal is outstanding, and thereafter enters  








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            or attempts to enter the United States, or except as  
            specified, is found in the United States, shall be fined,  
            imprisoned for two years or both.  (8 U.S.C. section 1326(a).)

          21)States that any alien whose removal was subsequent to a  
            conviction of three or more misdemeanors involving drugs,  
            crimes against the person, or both, or a felony, other than an  
            aggravated felony, who has been denied admission to the United  
            States, excluded, deported or removed, or who has departed the  
            United States while an order of exclusion, deportation or  
            removal is outstanding, and thereafter enters or attempts to  
            enter the United States, or except as specified, is found in  
            the United States, shall be fined, imprisoned for not more  
            than ten years, or both.  (8 U.S.C. section 1326(b)(1).)

          22)States that any alien whose removal was subsequent to a  
            conviction of an aggravated felony, and who has been denied  
            admission to the United States, excluded, deported or removed,  
            or who has departed the United States while an order of  
            exclusion, deportation or removal is outstanding, and  
            thereafter enters or attempts to enter the United States, or  
            except as specified, is found in the United States, shall be  
            fined, imprisoned for not more 20 years, or both.  (8 U.S.C.  
            section 1326(b)(2).)

          23)States that the US AG shall take into custody specified  
            inadmissible and deportable aliens who have committed  
            specified crimes, when the alien is released, without regard  
            to whether the alien is released on parole, probation, and  
            without regard to whether the alien may be arrested or  
            imprisoned again for the same offense.  [8 U.S.C. Section  
            1226(c)(1).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "AB 1882 is  
            common sense public safety legislation that will dramatically  
            reduce the number of unnecessary DUI deaths and injuries in  
            California.

          "Sara Cole, 44, a Los Gatos mother of four, was loading one of  
            her son's bicycles into her car in September 2007 when Lucio  
            Rodriguez swerved off the road and slammed into her.  Her legs  








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            were crushed, and she faces years of physical therapy and  
            surgeries.  Rodriguez, 27, fled the scene and when later  
            stopped by police was so drunk that he was unable to stand on  
            his own.  He had a blood alcohol level of 0.l6, twice the  
            legal limit.

          "It was later discovered that Rodriguez, a cook at a Los Gatos  
            restaurant, was believed to be in the U.S. illegally and had  
            been convicted in a misdemeanor drunken driving case six  
            months earlier.  No one from Immigration and Customs  
            Enforcement (ICE) had ever interviewed him on his residency  
            status after the first drunk driving conviction.

          "Had Rodriguez been reported to ICE the first time he was  
            convicted, Sara may still be walking.  We are not asking for  
            anything more than a notification phone call to ICE if there  
            is reason to believe the person is in the country illegally.   
            From there, ICE would use their resources to verify the  
            person's immigration status and how they would like to proceed  
            with the situation.

          "This bill creates minimal additional work for local law  
            enforcement agencies and in the long run may end up saving the  
            state time and money.  Theoretically, once the individual is  
            deported, the local agency no longer has to devote time and  
            money arresting them for subsequent violations."

           2)Immigration Issues Are Committed to the Absolute Discretion of  
            the United States AG  :  In State of California v. United  
            States, 104 F.3d 1086 (9th Circuit 1996), California alleged  
            that the US AG failed to perform his statutory duties under  
            specified sections of Title 8, United States Code, by not  
            conducting deportation proceedings immediately following the  
            conviction of aliens eligible for deportation and for failing  
            to take into custody aliens convicted of aggravated felonies  
            upon their release from state incarceration pending a  
            determination of deportability and other related issues.

          The 9th Circuit Court of Appeals rejected California's argument,  
            stating that "agency refusals to institute investigation or  
            enforcement proceedings fall within the exception to  
            reviewability provided by 5 U.S.C. Section 701(a)(2) for  
            action 'committed to agency discretion.'"  The Court held that  
            an agency's decision not to prosecute or enforce, whether  
            through civil or criminal process, is a decision generally  








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            committed to the agency's absolute discretion . . . these  
            issues are not subject to judicial review."  (Id at p. 1094.)

          Similarly, the United States Supreme Court has held that "our  
            cases have long recognized the preeminent role of the Federal  
            Government with respect to the regulation of aliens within our  
            borders."  (See, e.g., Matthews v. Diaz, 426 U.S. 67 (1976).)   
            States may not impose auxiliary burdens on aliens.  (Toll v.  
            Moreno, 458 U.S. 1 (1982).)

          In Williams v. Williams, 328 F. Supp. 1380 (U.S. District Court  
            for the District of Virgin Islands), the Court held that  
            non-compliance with immigration laws was not a reason to deny  
            the parties the jurisdiction of the civil courts of the United  
            States.  "To deny an alien access to our divorce courts on the  
            sole ground that he may be in violation of an immigration law  
            would be to deny both due process and the equal protection of  
            the laws.  Such a denial would attach a civil disability to  
            some aliens without the prior benefit of the procedures  
            designed or the purpose of enforcing the immigration laws.   
            (See 8 U.S.C.  1251 et seq; 8 C.F.R. pt. 241-44 (1970).)  The  
            divorce court is patently an inappropriate forum in which to  
            attempt to reproduce these procedures.  An exclusion from  
            court on this ground would also discriminate, without  
            compelling reason to do so, against persons who violate this  
            particular immigration law, as distinguished from persons who  
            violate any other law.  The remedy for a violation of 8 U.S.C.  
             1101(a)(15)(H) is deportation or other administrative  
            sanctions, not withdrawal of access to our divorce courts."   
            The Williams Court thus rejected using the state court system  
            to assist federal immigration authorities with the enforcement  
            of immigration law, a field fully occupied by the Federal  
            government.

          The 9th Circuit Court of Appeals has affirmed that "power to  
            regulate immigration is unquestionably exclusively a federal  
            power.  [T]he United States Constitution provides that  
            Congress shall have the power to . . . establish a uniform  
            Rule of Naturalization.  U.S. Constitution, article I,  8."   
            (Cazarez-Guiterrez v. Ashcroft, 382 F. 3d 905 (2004).)  The  
            Ninth Circuit has repeatedly recognized that the immigration  
            laws should be applied uniformly across the country, without  
            regard to the nuances of state law."  (Id. at p.913.)

          This bill is one of several bills in this Committee that have  








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            attempted to use California State law enforcement resources in  
            the enforcement of federal immigration laws.  As stated in a  
            long line of federal court cases, enforcement of immigration  
            laws is a matter entirely committed to the United States  
            Attorney General.  (See, e.g., Takahashi v. Fish and Game  
            Commission, 334 U.S. 410, 419 (1948); California v. United  
            States, 104 F. 3d 1086 (9th Circuit 1996);   New Jersey v.  
            United States, 91 F. 3d 463 (3rd Circuit 1996).)  Individual  
            states may not enact laws that impose an auxiliary burden upon  
            the entrance or residence of aliens that was never  
            contemplated by Congress.  

           3)Feasibility of This Bill  :  In some jurisdictions in  
            California, persons arrested for DUIs are not taken to a  
            central jail facility, but are held at local facilities until  
            they are deemed sober enough to be released from custody.   
            Would this bill require that all DUI arrestees be taken to a  
            central facility, where ICE representatives are more likely to  
            be available or require ICE representatives to travel to the  
            local facilities, which may be miles away from a centralized  
            jail facility?  These additional burdens are particularly  
            notable in view of the fact that they are imposed on the basis  
            of an arrest and the inability to provide documentation of  
            legal presence in the United States.  What is the nexus  
            between a DUI arrest and the additional demands for  
            documentation of legal presence in the United States?    

          Moreover, inasmuch as individual states may not enact laws that  
            impose an auxiliary burden upon the entrance or residence of  
            aliens that was never contemplated by Congress, detention of a  
            person arrested for DUI for a longer period of time due to the  
            inability to provide such documentation would certainly be  
            found to be auxiliary burden on the residence of aliens that  
            was never contemplated by Congress.  It should be recognized  
            that the person detained may well be a citizen of the United  
            States.

          Even if a stop and seizure of the person was initially lawful,  
            it can become unlawful by becoming unreasonably intrusive or  
            prolonged.  The scope and duration of a seizure must  
            reasonably relate to the underlying justification for the  
            seizure.  Once that justification expires, the seizure must  
            end.  The scope of the search must be strictly tied to and  
            justified by the circumstances which rendered its initiation  
            possible.  An officer must confine his or her investigation  








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            strictly to what was minimally necessary to achieve the  
            justified, proper objective.  Even if the stops complied with  
            the Fourth Amendment, the officers' subsequent activities must  
            also have met Fourth Amendment requirements; i.e., those  
            further actions must have reasonably been related to the  
            purpose - to enforce the state's traffic laws - of the stop.   
            (Farm Labor Organizing Committee v. Ohio State Highway Patrol,  
            991 F, Supp. at p. 902.)

          The United States Supreme Court has held that an officer must  
            have a particularized suspicion before he or she stops,  
            detains and questions a potential illegal alien.  In that  
            case, the officers relied on a single factor to justify  
            stopping the car:  the apparent Mexican ancestry of the  
            occupants.  "We cannot conclude that this furnished reasonable  
            grounds to believe that the three occupants were aliens."   
            (United States v. Brigoni-Ponce, 422 U.S. 873, 885 - 887  
            (1975).)  

          "Citizens are entitled to equal protection of the laws at all  
            times.  If law enforcement adopts a policy, employs a  
            practice, or in a given situation takes steps to initiate an  
            investigation of a citizen based solely upon that citizen's  
            race, without more, then a violation of the Equal Protection  
            Clause has occurred."  (United States v. Avery, 137 F. 3d 343  
            (6th Circuit 1997).)

          Even if an underlying DUI stop was reasonable under the Fourth  
            Amendment, the officer's subsequent activities must have been  
                                            reasonably related to the purpose of enforcing the state's  
            traffic laws.  (Farm Labor Organizing Committee, supra, at p.  
            902.)  Questioning the driver about his or her immigration  
            status, demanding that he or she produce legal documentation  
            and prolonging the detention until officials from ICE can be  
            summoned and can arrive at the scene, prolong the period of  
            time the arrested person is detained, and have no reasonable  
            relationship to the enforcement of the state's traffic laws.

          The United States Supreme Court has issued similar findings.  "A  
            lawful seizure can become unlawful if it is prolonged beyond  
            the time reasonably required to complete the mission."   
            (Illinois v. Caballes, 543 U.S. 405 (2005); Muehler v. Mena,  
            544 U.S. 93 (2005).)  If this bill contemplates the further  
            detention of the arrested person to accommodate the ICE  
            official's other workload or travel time to the scene of the  








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            detention, a lawful seizure and detention becomes unlawful if  
            it is prolonged beyond the time reasonably required to  
            complete the arrest.  

           4)Department of Motor Vehicles Data  :  In 2004, the Department of  
            Motor Vehicles reports that the total number of DUI arrests  
            was 180,957.  175,311 of these were misdemeanor arrests.   
            31,538 of these involved alcohol-related injuries.   
            (California Department of Motor Vehicles 2006 Annual Report of  
            the California DUI Management Information System.)

          That report also states that "among 2004 DUI arrestees,  
            Hispanics (44.6%) again constituted the largest racial/ethnic  
            group, as they have each year since 1992.  Hispanics, however,  
            continued to be arrested at a rate substantially higher than  
            their estimated percentage of California's adult population  
            (31.8% in 2004).  The ethnic distribution among DUI arrestees  
            who are convicted fairly closely parallels the ethnic  
            distribution of the arrestees.

          "Blacks were also slightly overrepresented among DUI arrestees  
            (7.0% of arrests; 6.5% of the population), while other  
            racial/ethnic groups were underrepresented among DUI  
            arrestees, relative to their 2004 population parity.  These  
            underrepresented groups were Whites (41.8% of arrests; 47.4%  
            of the population) and 'Other' (6.6% of arrests; 14.3% of the  
            population.

          "In seven counties, Hispanics comprised 60% or more of those  
            arrested for DUI during 2003:  Tulare (74.5%); Merced (67.0%);  
            Fresno (65.9%); San Benito (62.7%); Imperial (69.5%); Monterey  
            (67.7%); and Madera (65.8%).  In most other counties, the  
            majority of the arrestees were white.  

          "The average age of a DUI arrestee varied considerably by race.   
            Blacks were the oldest, with a mean age of 35.7 years, while  
            Hispanics were the youngest, with a mean age of 31.1 years."

          Statewide, the DUI conviction rate was 76.7%; there were 137,126  
            misdemeanor convictions and only 3,721 felony DUI convictions.  
             1,155 of the DUI cases were dismissed.  DUI conviction rates  
            varied greatly by county, with Tehama County having a DUI  
            conviction rate of only 38.2% and Amador County having a  
            conviction rate of 97.2%.









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          Why are Hispanics arrested at a rate substantially higher than  
            their estimated percentage of California's population?  Why  
            are Blacks also overrepresented among DUI arrestees?  With no  
            information provided that either group drinks more alcohol  
            than the general population, it appears that these two  
            California's minority groups may be, for some reason, more  
            highly targeted by law enforcement.  A GOOGLE search disclosed  
            numerous articles from across the country regarding law  
            enforcement targeting Hispanic neighborhoods for DUI  
            checkpoints.  If this bill passes and law enforcement officers  
            now have the ability to both arrest a suspected DUI driver and  
            at the same time be credited with illegal immigration  
            enforcement, it can reasonably be expected that the arrest  
            rate for Hispanics may rise dramatically.  

           5)No State Can Add To or Reduce the Force of Immigration  
            Regulations Enacted  by Congress  :  Contrary to the author's  
            statement that this bill will dramatically reduce the number  
            of unnecessary DUI deaths and injuries in California, it  
            appears that this bill is, in fact, intended to add to the  
            force of immigration rules enacted by Congress.  

          Since the Federal Government has the exclusive power to regulate  
            immigration, state legislative bodies are unlikely to be  
            successful in attempts to encroach upon Congressional power.   
            (See, e.g., De Canas v. Bica, 424 U.S. 351 (1976).)

          "Over no conceivable subject is the power of Congress more  
            complete than it is over the admission of aliens.  Congress  
            has exercised its constitutional authority to regulate  
            immigration by enacting the Immigration and Nationality Act  
            (INA), 8 U.S.C. Section 1101 et seq.  The INA and its  
            accompanying regulations comprehensively address issues  
            relating to immigration, including authorized entry, length of  
            stay, residence status, and deportation.  The INA,  
            furthermore, delegates enforcement duties to the Immigration  
            and Naturalization Service (INS).  No state can add to or  
            reduce the force of immigration regulations enacted by  
            Congress."  (Farm Labor Organizing Committee, supra, at p.  
            902, citing Takahashi v. Fish and Game Commission, 334 U.S.  
            410, 419 (1948).)  In light of the preemptive reach of federal  
            authority over immigration, the states, at least arguably,  
            have no interest in, and thus no role to play in, the  
            enforcement of federal laws relating to aliens.  (Farm Labor  
            Organizing Committee, supra, at p. 902.)  








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          Note:  The United States Citizenship and Immigration Services  
            (USCIS) is a bureau of the Department of Homeland Security  
            (DHS); the duties of the INS were transferred to the USCIS by  
            the National Strategy for Homeland Security and the Homeland  
            Security Act of 2002.

          As stated in this analysis, there are no criteria for an officer  
            demanding that the arrested person provide appropriate  
            documentation demonstrating his or her legal presence in the  
            United States.  It does not appear reasonable to conclude that  
            every DUI arrest will be accompanied by a demand for  
            documentation of legal presence in the United States.  

          This bill is unclear as to what documents will satisfy the  
            demand for documentation of legal presence in the United  
            States.  As pointed out below, there are many different  
            classifications of immigrants and not all of them are issued  
            "green cards."  There are also visitors, foreign students,  
            people with special work permits, asylum-seekers, and people  
            recently married to a United States citizen and in the  
            application process for a "green card", etc.  According to the  
            Migration Policy Institute (MPI), by the end of 2007, nearly  
            one million naturalization cases were pending; many of these  
            cases were delayed due to the need for a Federal Bureau of  
            Investigation (FBI) name check, which can take weeks or months  
            as manual reviews of FBI files are sometimes required.  The  
            one million persons with naturalization cases pending may not  
            have the required documentation, but are recognized by USCIS;  
            in February 2008, that agency announced that it would begin  
            granting permanent residence to certain applicants whose cases  
            were otherwise complete but had been awaiting FBI clearance  
            for more than six months.  (MPI February 2008.)  

          This bill is vague with respect to the documentation that will  
            be accepted and, therefore, subject to unequal interpretation  
            and application by law enforcement officers.

          In fact, how many United States citizens regularly drive with  
            evidence of legal documentation of the right to be in the  
            United States?  Such documentation seemingly would consist of  
            a birth certificate, a valid social security card, or a United  
            States passport.  Carrying one's social security card has  
            recently been discouraged due to the increasing problems of  
            identity theft; and unless a citizen is driving to the  








                                                                  AB 1882
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            airport, en route to a foreign destination, he or she is  
            unlikely to drive around with his or her passport in the car.   
            Driving with one's birth certificate in hand is similarly  
            highly unlikely; most citizens, if they can find their birth  
            certificates at all, keep them securely filed or in safe  
            deposit boxes.  Unless arresting peace officers intend to  
            require documentation of the right to be in the United States  
            from all persons detained, these factors suggest that proving  
            one's right to be in the United States will be required only  
            of persons who appear to have been born in other countries,  
            which, if true, is racial profiling and illegal.

          Moreover, according to the Migration Policy Institute (MPI), the  
            current Social Security card is the least secure of all of the  
            documents; it is the only document at present that lacks any  
            type of photograph, does not include a date of birth, and is  
            not laminated.  The Social Security card lacks features to  
            make it tamper-proof, yet it is one of the major documents  
            used by employers to verify work eligibility.  Other possible  
            documents include border crossing cards and laser visas; the  
            I-551 Permanent Resident Card; I-688, Temporary Resident Card  
            and driver's licenses issued prior to REAL-ID and those issued  
            after REAL-ID.  According to MPI, the State Department is  
            currently working with DHS to develop the People's Access  
            Security Services (PASS) card that will allow for United  
            States citizens without a passport to enter the United States  
            from Canada, Mexico, the Caribbean, and Bermuda through land  
            and sea ports.  

          What documents would be acceptable under this bill to prove the  
            right to be in the United States?  Of the listed documents,  
            United States citizens have only Social Security cards, the  
            least secure of any of the documents, and driver's licenses  
            potentially in their possession while driving vehicles.  An  
            immigrant driver may have one of the other listed documents,  
            but it is questionable if every local law enforcement officer  
            is sufficiently familiar with the various immigration  
            documents to recognize an I-688 or I-688B, an employment  
            authorization document.  

          Clearly, the request for documentation of a person's legal right  
            to be in the United States would probably be limited to a  
            person who appears "foreign" or has less than perfect English  
            language skills and other matters insufficient to form any  
            reasonable cause for the request.  Local law enforcement  








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            officers are not sufficiently trained in the nuances of  
            federal immigration law, and would be unable to form a  
            suspicion based upon any of the numerous provisions of that  
            body of law.   Requiring every person arrested to provide such  
            documentation would be burdensome, costly, and a waste of the  
            resources of both the local law enforcement agency and ICE.

          Moreover, contacting immigration officials to make a final  
            determination is a misnomer.  The complexity of the federal  
            immigration laws is one of many reasons there are so many due  
            process and substantive hearings before immigration judges and  
            appeals from the decisions of those judges to the Federal  
            Board of Immigration Appeals, the final body in the  
            Administrative appeals process.  "The Board of Immigration  
            Appeals is the highest administrative body for interpreting  
            and applying immigration laws.  The Board has nationwide  
            jurisdiction to hear appeals from certain decisions rendered  
            by Immigration judges and by district directors of DHS in a  
            wide variety of cases in which the government of the United  
            States is one party and the other party is an alien, a  
            citizen, or a business firm.  Decisions of the Board are  
            binding on all DHS officers and Immigration Judges unless  
            modified or overturned by the Attorney General or a Federal  
            Court.  All Board decisions are subject to judicial review in  
            the Federal Courts."  (See, generally,  http://www.doj.gov  .)

          The person charged as an illegal alien then has the right to  
            challenge the findings of the administrative appeals body in  
            federal district court.  Thus, even if immigration officials  
            were called to the scenes of DUI arrests, they would be  
            offering, at best, a preliminary opinion, not a final  
            determination.  

           6)Federal Appeals Court has held that a Conviction for Second  
            Degree Manslaughter Did Not Constitute a Crime of Violence and  
            Did Not Subject the Person Convicted to Removal from the  
            United States:    In Jobson v. Ashcroft, 326 F. 3d 367 (2nd  
            Circuit 2003), the plaintiff appealed from an order of  
            deportation for commission of manslaughter, for recklessly  
            causing the death of his son.  The court stated, "Under 8  
            U.S.C.  1227(a)(2)(A)(iii), 'any alien who is convicted of an  
            aggravated felony after admission is deportable.'  An  
            aggravated felony is a term of art defined in various sections  
            of 8 U.S.C.  1101(a)(43); subsection (F) thereof defines  
            aggravated felony as 'a crime of violence (as defined in 18  








                                                                  AB 1882
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            U.S.C.  16) for which the term of imprisonment is at least  
            one year.  Crime of violence, also a term of art, is defined  
            in 18 U.S.C.  16 as physical force against the person or  
            property of another, or (b) any other offense that is a felony  
            and that, by its nature, involves a substantial risk that  
            physical force against the person or property of another may  
            be used in the course of committing the offense."

          The court further held that "this Court takes a categorical  
            approach to determining whether an offense is a crime of  
            violence within the meaning of section 16(b).  See Dalton v.  
            Ashcroft, 257 F. 3d 200, 203 (2nd Circuit 2001.)  Under a  
            categorical approach, we look to the generic elements of the  
            statutory offense.  'Only the minimal criminal conduct  
            necessary to sustain a conviction under a given statute is  
            relevant,' citing Michel v. INS, 206 F. 3d 253, 270 (2nd  
            Circuit 2000.)  We have acknowledged the daunting difficulties  
            of looking beyond the record of conviction and have concluded  
            that we cannot go behind the offense as it was charged to  
            reach our own determination as to whether the underlying facts  
            amount to one of the enumerated crimes."  (Sui v. INS, 250 F.  
            3d 105, 117-118 (2nd Circuit 2001).)  We reasoned that under 8  
            U.S.C.  1227(a)(2)(A)(iii), deportability is premised on the  
            existence of a conviction, not on an inquiry into a particular  
            defendant's conduct."  (Id. at 126, n.10, 116-117.)

          In Jobson, the defendant was convicted under a state statute  
            that required that he "recklessly cause the death of another."  
             (N.Y.P.L.  125.15(1).)  "It is clear that the minimum  
            criminal conduct required to violate N.Y.P.L.  125.15(1) does  
            not necessarily present a substantial risk that physical force  
            against the person of another may be used.  The offense  
            encompasses many situations in which the defendant applies no  
            physical force to the victim, and more importantly, situations  
            that do not involve any risk that the defendant will apply  
            force to the victim."  The Jobson Court notes the many crimes  
            which involve a substantial risk of injury but do not involve  
            the use of force.  Accordingly, this alone would justify  
            holding that the statute in question is not categorically a  
            crime of violence within the meaning of 18 U.S.C. Section  
            16(b).

          "Second, we believe that the unintentional accident caused by  
            recklessness cannot properly be said to involve a substantial  
            risk that a defendant will use physical force."  The Court  








                                                                  AB 1882
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            further held that section 16(b) contemplates only intentional  
            conduct and refers only to those offenses in which there is a  
            substantial likelihood that the perpetrator will intentionally  
            employ physical force.  (Id. at p. 373.)

          Finally, the Jobson Court held that Jobson's conviction under  
            the New York manslaughter statute was not a crime of violence  
            within the meaning of 18 U.S.C. Section 16(b).  It is  
            therefore not an aggravated felony under 18 U.S.C. Section  
            1101(a)(43)(F).

          The 9th Circuit has joined other circuits in restricting the  
            category of crimes of violence under 18 U.S.C.  16 to crimes  
            requiring specific intent to use force against a person or  
            property.  (Fernandez-Ruiz v. Gonzales, 466 F. 3d 1121, 1127  
            (9th Circuit 2006).)  The court cited the "conclusion of the  
            Leocal Court [Leocal v. Ashcroft, 543 U.S. 1 (2004)] that in  
            no ordinary or natural sense can it be said that a person  
            risks having to use physical force against another person in  
            the course of operating a vehicle while intoxicated and  
            causing injury strongly indicates that the result in Leocal  
            would have been the same even had a violation of the statute  
            there at issue required recklessness rather than mere  
            negligence."  (Fernandez-Ruiz, supra at p. 1127.)  

           7)Arguments in Support  :  According to the  Peace Officers  
            Research Association of California  , "AB 1882 would cover an  
            existing gap in the reporting of undocumented aliens who are  
            arrested for violating specific laws.  Current law requires  
            the reporting of undocumented aliens for most drug violations  
            except for DUI/drugs-alcohol.  Most jurisdictions conduct a  
            quick release program for DUI/drugs-alcohol that inhibits the  
            ability of ICE to review the status of a suspected  
            undocumented alien.  This bill would require the agency to  
            report the individual, thus placing a hold on the individual  
            which would give ICE the time to properly evaluate their legal  
            status in the country."

           8)Arguments in Opposition  :

             a)   According to the  American Civil Liberties Union  , "This  
               bill invites mass racial profiling because state and local  
               law enforcement officials are not trained or legally  
               competent to determine an individual's federal immigration  
               status.  Instead, law enforcement officials would be forced  








                                                                  AB 1882
                                                                  Page  18

               to rely on whether someone looks or sounds 'foreign,'  
               resulting in profiling of Latinos and other immigrant  
               communities.  Although the bill offers no guidance on how  
               law enforcement officers would determine an individual  
               driver's immigration status, to the extent it contemplates  
               police reliance on the FBI's National Crime Information  
               Center (NCIC) or related federal databases, those databases  
               are notoriously inaccurate.  Indeed, a 2005 study by the  
               Migration Policy Institute notes an alarming number of  
               false positive 'hits' when the names and other identifying  
               information of individuals are entered into these  
               databases.  See  http://www.migrationpolicy.org
             /news/2005 12 08.php  .  Because the bill applies to  
               individuals who are merely arrested for an alleged  
               violation, it also invites local law enforcement to use  
               purported DUI-related traffic stops and arrests as a  
               pretext for attempting to enforce civil immigration laws.

             "This bill increases costs for local law enforcement agencies  
               by mandating that they assume the burden of enforcing the  
               nation's civil immigration laws, stretching already thin  
               resources that could be better focused on protecting public  
               safety and enforcing criminal laws.  Moreover, immigration  
               laws are extremely complex and the unavoidable mistakes  
               made by ill-prepared law enforcement officials in  
               determining an individual's immigration status can be  
               costly, resulting in lawsuits and protracted litigation,  
               especially if individuals are wrongly detained because of  
               assumptions about their immigration status.  See, e.g.,  
               Soto-Torres v. Johnson, CIV S-99-1695 WBS/DAD (E.D. Cal  
               filed August 30, 1999.  (County and federal officials paid  
               $100,000 to settle the case after the County probation  
               officer made an erroneous determination regarding  
               plaintiff's deportability which resulted in wrongful arrest  
               and detention of plaintiff by immigration authorities.)

             "The DUI statutes referenced in this bill are not removable  
               offenses.  Although this bill purports to focus on whether  
               an individual is present in the United States without  
               authorization, it is worth noting that the DUI-only  
               violations referenced in the bill are by themselves  
               offenses that would not subject legal immigrants to  
               deportation.  The United States Supreme Court has held that  
               DUI offenses that do not contain a mens reae element or  
               otherwise allow a conviction or merely negligent conduct  








                                                                  AB 1882
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               are not removable offenses under the federal immigration  
               laws.  Leocal v. Ashcroft, 543 U.S. 1 (2004.)  Therefore,  
               there is no nexus between the underlying DUI violations  
               referenced in this bill and offenses that would subject an  
               individual to removal from the United States under federal  
               immigration law."
              
              b)   According to the  Friends Committee on Legislation of  
               California  (FCL), "FCL fears that this bill invites racial  
               profiling as law enforcement officers have not been trained  
               in complex immigration law.  Furthermore, we question the  
               probity of asking local law enforcement to bear the burden  
                      of enforcing federal law.

             "While we support efforts to reduce prison spending,  
               especially when California is facing a $14.5 billion  
               deficit, a recent report by the Public Policy Institute of  
               California indicates that immigrants are responsible for  
               much less of our state's incarceration costs than is  
               commonly assumed.  The only way to significantly reduce  
               prison spending is to reduce the number of people in  
               prison, which would require accelerated release, preferably  
               as the result of sentencing reforms.  If this is one with  
               care and consideration, California could reduce the number  
               of people in prison without harming public safety."
              
              c)   According to the  Lawyers' Committee for Civil Rights of  
               the San Francisco Bay Area  , "AB 1882 would embroil local  
               law enforcement agencies in complex immigration-related  
               matters that remain the exclusive responsibility of the  
               Federal government.

             "Local law enforcement officers are not trained or legally  
               competent to determine an individual's federal immigration  
               status.  Immigration laws are extremely complex.  Federal  
               immigration agents are required to undergo an intensive and  
               specialized residential training lasting over four months,  
               and federal agents in the field complete additional  
               on-the-job training.  Local law enforcement officers are in  
               no position to make complex judgments regarding an  
               individual's status in the country.  In particular, there  
               are many categories of immigrants, such as asylum-seekers,  
               who are lawfully present in the country but may not have  
               readily-available documents or papers that establish their  
               status.








                                                                  AB 1882
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             "To the extent that the bill contemplates police reliance on  
               the FBI's National Crime Information Center (NCIC) or  
               related federal databases, those databases are notoriously  
               inaccurate.  According to a recent study, 42 percent of  
               federal immigration database 'hits' were false positives.   
               [Migration Policy Institute, Blurring the Lines:  A Profile  
               of State and Local Police Enforcement of Immigration Law  
               Using the National Crime Information Center Database,  
               2002-2004 (available at  www.migrationpolicy.org/;
             news/2005_12-08.php.)  ]  As a result, law enforcement agencies  
               that rely on those error-filled databases are likely to  
               arrest or detain individuals who are not actually subject  
               to removal.

             "Because the bill applies to persons who are merely arrested  
               for an alleged violation, it also invites local law  
               enforcement to use purported DUI-related traffic stops and  
               arrests as a pretext for attempting to enforce civil  
               immigration laws.  We are particularly concerned that the  
               bill will result in the arrest and detention of Latinos and  
               other immigrant communities that appear or sound 'foreign'  
               to the officers.

             "AB 1882 will likely result in costly and protracted  
               litigation against local and state officials when mistakes  
               are made by ill-prepared law enforcement officials.  In one  
               of our cases, Soto-Torres v, Johnson, CIV S-99-1695 WBS/DAD  
               (E.D. California, filed August 30, 1999, County and federal  
               officials were forced to pay $100,000 to settle a lawsuit  
               after a County probation officer made an erroneous  
               determination regarding the plaintiff's deportability,  
               which resulted in the wrongful arrest and detention of  
               plaintiff by immigration authorities.

             "Lastly, although this bill purports to focus on whether an  
               individual is present in the United States without  
               authorization, it is worth noting that DUI-only violations  
               referenced in the bill are by themselves offenses that  
               would not subject legal immigrants to deportation.  The  
               U.S. Supreme Court has held that DUI offenses that do not  
               contain a certain mens rea element or otherwise allow a  
               conviction for merely negligent conduct are not removable  
               offenses under federal immigration law.  Leocal v.  
               Ashcroft, 543 U.S. 1 (2004).  Therefore, there is no nexus  








                                                                  AB 1882
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               between the underlying DUI violations referenced in this  
               bill and offenses that would subject an individual to  
               removal from the United States under federal immigration  
               law."  

             [Mens Rea is defined by Black's Law Dictionary as "a guilty  
               mind; a guilty or wrongful purpose; a criminal intent.   
               (Black's Law Dictionary, Fifth Edition).]
              
          9)Prior Legislation  :
           
              a)   AB 1082 (Garrick) would have permitted federal and local  
               law enforcement officials to cooperate with enforcement of  
               immigration laws, provided that the Director of Homeland  
               Security develop a program to reimburse local law  
               enforcement in an amount equal to the prorated salary of  
               the local officer for time the officer spent attending  
               training on the federal Immigration Reform and Immigrant  
               Responsibility Act of 1996.  AB 1082 failed passage in this  
               Committee, was granted reconsideration, failed passage and  
               returned to the Assembly Desk.  
              
              b)   AB 648 (Adams) would have created a new ten-year  
               sentencing enhancement for any felony conviction of a  
               person who was previously convicted of a felony in  
               California for which he or she was deported from the United  
               States.  AB 648 failed passage in this Committee, was  
               granted reconsideration, failed passage and returned to the  
               Assembly Desk.  
              
              c)   AB 39 (Benoit) would have required the Secretary of the  
               Department of Corrections and Rehabilitation to demand in  
               writing that the United States AG take federal custody of  
               any undocumented inmate incarcerated in California's  
               correctional system.  AB 39 failed passage in this  
               Committee, was granted reconsideration, failed passage, and  
               returned to the Assembly Desk.   
           
           REGISTERED SUPPORT / OPPOSITION :   

           Support 
           
          Peace Officers Research Association of California

           Opposition 








                                                                 AB 1882
                                                                  Page  22

           
          American Civil Liberties Union
          California Public Defenders Association
          Friends Committee on Legislation of California
          Lawyers Committee for Civil Rights of the San Francisco Bay Area
          Mexican American Legal Defense Fund and Educational Fund

           
          Analysis Prepared by  :    Kathleen Ragan / PUB. S. / (916)  
          319-3744