BILL ANALYSIS
AB 91
Page 1
Date of Hearing: April 14, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 91 (Feuer) - As Amended: April 13, 2009
SUMMARY : Establishes a four-county pilot program within the
Department of Motor Vehicles (DMV) that requires a person
convicted driving under the influence (DUI) to install an
ignition interlock device (IID), as specified, on all vehicles
he or she owns or operates and to participate in a county
alcohol and drug problem assessment program, as specified.
Specifically, this bill :
1)Requires the DMV establish a pilot program in Alameda, Los
Angeles, Sacramento and San Diego to reduce the number of
first time violations and repeat offenses of DUI and DUI with
injury. This program shall commence on July 1, 2010 and
sunset on January 1, 2015.
2)Requires the DMV, upon receipt of the court's abstract
conviction for DUI or DUI with injury, to inform the convicted
person of his or her duty to install an IID, as specified,
including the term for which the person is required to have a
certified IID installed and the requirement that he or she
participate in a county alcohol and drug problem assessment
program, as specified.
3)Requires that DMV records reflect the mandatory use of the IID
for the term specified and the time when the IID must be
installed, as specified. The DMV must advise the person that
the installation of an IID does not allow the person to drive
without a valid driver's license.
4)States before a driver's license may be issued, reissued or
returned to a person after a suspension or revocation of that
person's driving privilege where an IID is required, a person
notified by DMV of the IID requirement must complete all of
the following:
a) Arrange for each vehicle owned and operated by the
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person to be fitted with an IID by a certified IID
provided, as specified.
b) Notify and provide proof if installation of the IID to
the DMV by submitting a "verification of installation" for,
as specified.
c) Pay the fee determined the DMV sufficient enough to
cover the cost of administration.
5)Provides that the DMV shall place a restriction on the
convicted person's driver's license record that states the
driver is restricted to only driving a vehicle equipped with a
certified IID.
6)States the DMV shall monitor installation and maintenance of
the IID, as specified.
7)Provides a person who is required to install an IID as a
condition of being issued a restricted driver's license, being
reissued a driver's license, or having the privilege to
operate a motor vehicle reinstated subsequent to a suspension
for driving on a suspended license, as specified, shall be as
follows:
a) Upon conviction of a first offense DUI or DUI with
injury, a person shall install an IID in all vehicles owned
and operated by that person for a mandatory term of five
months for a DUI and 12 months for a DUI with injury to
begin when he or she has shown proof of installation.
b) Upon conviction for a second offense DUI or DUI with
injury, a person shall install an IID for a mandatory term
of 12 months for a DUI and 24 months for a DUI with injury.
c) Upon conviction for a third offense DUI or DUI with
injury, a person shall install an IID for a mandatory term
of 24 months for a DUI and 36 months for a DUI with injury.
d) Upon conviction of a fourth or subsequent offense DUI or
DUI with injury, a person shall install an IID for a
mandatory term of 36 months for a DUI and 48 months for a
DUI with injury.
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8)States existing provisions related to mandatory IIDs are still
operative.
9)Provides that the mandatory term for which the IID is to be
installed shall be reset by the DMV if a person fails to
comply with any of the requirements regarding IID installation
and maintenance.
10)Mandates the county alcohol and drug problem assessment
program must include treatment and counseling recommendations.
11)Authorizes the court to impose a fee of not more than $120 to
pay be cost of the county alcohol and drug problem assessment
program. However, the court shall determine the person's
ability to pay for all or a portion of the fee for the
assessment based on the person's income relative to the
federal poverty level, as specified:
a) A person with an income at 100% of the poverty level and
below is responsible for 10% of the fee for the assessment.
b) A person with an income at 101% to 200% of the federal
poverty level is responsible for 10% of the fee for the
assessment.
c) A person with an income at 201% to 300% of federal
poverty level is responsible for 50% of the fee for the
assessment.
d) All other offenders are responsible for 100% of the fee
for the assessment.
12)Requires every manufacturer and manufacturer's agent
certified by the DMV, as specified, to provide IIDs must adopt
the following fee schedule that provides for the payment of
the costs of the IID by offenders subject to this requirement
in amounts commensurate with that person's income relative to
the federal poverty level, as specified:
a) A person with an income at 100% of the poverty level and
below is responsible for 10% of the fee for the assessment.
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b) A person with an income at 101% to 200% of the federal
poverty level is responsible for 10% of the fee for the
assessment.
c) A person with an income at 201% to 300% of federal
poverty level is responsible for 50% of the fee for the
assessment.
d) All other offenders are responsible for 100% of the fee
for the assessment.
13)States the cost of the IID may only be raised annually equal
to the Consumer Price Index and the offender's income may be
verified by presentation of that person's federal income tax
return or three months of monthly income statements.
14)States the requirements of an IID, as specified, are in
addition to any other requirement of law.
15)Mandates the DMV report to the Legislature on or before
January 1, 2014 regarding the effectiveness of the pilot
program, as specified, in reducing the number of first-time
violations and repeat offenses of DUI and DUI with injury in
Alameda, Los Angeles, Sacramento, and San Diego.
EXISTING LAW :
1)Authorizes the court to require that a person convicted of a
first offense violation of DUI and DUI causing bodily injury
to install a certified IID on any vehicle that the person owns
or operates and prohibits that person from operating a motor
vehicle unless that vehicle is equipped with a functioning,
certified IID. The court shall give heightened consideration
to applying this sanction to a first-offense violator with
0.20% or more, by weight, of alcohol in his or her blood at
arrest, or with two or more prior moving traffic violations,
or to persons who refused the chemical tests at arrest. If
the court orders the IID restriction, the term shall be
determined by the court for a period not to exceed three years
from the date of conviction. The court shall notify DMV, as
specified, of the terms of the restrictions in accordance with
existing law. The DMV shall place the restriction in the
person's records in the DMV. [Vehicle Code Section
23575(a)(1).]
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2)Requires the court where a person convicted of a violation of
driving on a suspended license where the suspension is the
result of DUI to install an IID on any vehicle that the person
owns or operates and prohibits the person from operating a
motor vehicle unless the vehicle is equipped with a
functioning, certified IID. The term of the restriction shall
be determined by the court for a period not to exceed three
years from the date of conviction. [Vehicle Code Section
23575(a)(2).]
3)States the court shall advise the person that installation of
an IID on a vehicle does not allow the person to drive without
a valid driver's license. [Vehicle Code Section 23575(c).]
4)States a person whose driving privilege is restricted by the
court pursuant to this section shall arrange for each vehicle
with an IID to be serviced by the installer at least once
every 60 days in order for the installer to recalibrate and
monitor the operation of the device. The installer shall
notify the court if the device is removed or indicates that
the person has attempted to remove, bypass, or tamper with the
device, or if the person fails three or more times to comply
with any requirement for the maintenance or calibration of the
IID. There is no obligation for the installer to notify the
court if the person has complied with all of the requirements
of this article. [Vehicle Code Section 23575(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "DUI has proven
to be an enormous problem in California. In 2007, there were
203,866 DUI arrests made statewide in California, which
averages out to 558 DUI arrests every day. Of those arrests,
45,149 were repeat offenders. In this same year, DUI drivers
caused 53,261 collisions, resulting in the death of 1501
people. This is 518 more people killed as a result of driving
under the influence than in 2006. This bill would stop DUI
drivers in their tracks by obstructing their ability to start
their vehicle when they have alcohol in their system, while
affording them with ability to attend to their daily
activities by returning their driving privilege as long as
they comply with the IID requirements. Interlock ignition
devices (IIDs) have uniformly demonstrated, when utilized
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effectively, that they can reduce DUI recidivism from 40 to 95
percent. IIDs have already been implemented with positive
results in New Mexico, Texas, Washington and many others
states. California has not seen results from IIDs because
they have not been consistently ordered to be installed.
Unless installed, IIDs cannot work. This bill would require
the use of IIDs by a person convicted of a DUI offense. These
DUI offenders would be eligible for restricted driver's
licenses only after they have completed a required period of
mandatory suspension and have installed the required IID.
Implementation of IIDs would be a powerful tool to reduce the
number of DUI related deaths and injuries"
2)Existing Law Related to IID and DUI : An IID is a
"sophisticated breath-testing device that is connected to the
ignition system of a vehicle. When the device detects a
pre-set level of alcohol in a breath sample, presumably
provided by the driver, it prevents the vehicle from being
started by blocking electrical power to the starter."
[Robertson et al., Between the Lines: About Alcohol Ignition
Interlocks, (2007) 16 American Prosecutors Research Institute
1.]
Current law authorizes use of an IID where the court feels it is
appropriate. Vehicle Code Section 23575 relates specifically
to the use of IIDs under specified circumstances and states
the court may require that a person convicted of a
first-offense violation of DUI to install a certified IID on
any vehicle that the person owns or operates and prohibits
that person from operating a motor vehicle unless it is
equipped with a functioning, certified IID. The court is
required to give heightened consideration to a high blood
alcohol content (BAC) or multiple moving violations in
applying the IID requirement to a first offender. If the
offender is required to install an IID, the length of time
shall be determined by the court and may not exceed three
years. [Vehicle Code Section 23575(a)(1).]
In 1998, the Legislature required the court to order an IID on
every offender convicted of driving on a suspended license
where the suspension was the result of a prior DUI conviction.
The term of restriction may be set by the court not to exceed
three years. Prior to last year, the court notified the
defendant of his or her responsibility to install an IID. The
defendant is required to bring the vehicle in to service the
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IID every 60 days to recalibrate and monitor the device. If
the defendant fails three or times to service the device or in
any way tampers with the device, the installer must notify the
court. [AB 762 (Torlakson), Chapter 756, Statutes of 1998;
Vehicle Code Section 23575(b); but see AB 1388 (Torlakson),
Chapter 404, Statutes of 2008.] Under these provisions of
law, it is possible a defendant may be ordered to install the
IID as a condition of probation, meaning the defendant may
suffer a violation of probation and additional jail time if he
or she does not comply.
Any attempt to remove, bypass or tamper with an IID is deemed
unlawful and, as such, is a misdemeanor punishable by up to
six months in the county jail and/or a fine of not more than
$1000. [Vehicle Code Section 23247(d); Penal Code Sections 15
and 19.] Included in the definition of "bypass" is failing to
retest while the car is motion three consecutive times.
[Vehicle Code Section 23575(o)(1) and (2).]
3)License Suspension and Revocation : Currently, DUI results in
license suspension or revocation under certain circumstances.
The length of time of suspension or revocation depends on a
number of prior convictions and is listed in other code
sections. Vehicle Code Section 13352 is the general statute
regarding license suspension or revocation for DUI and speed
contest and states, in relevant part, "The department [DMV]
shall immediately suspend or revoke the privilege of a person
to operate a motor vehicle upon the receipt of an abstract of
the record of a court showing that the person has been
convicted of [driving under the influence and speed contest]."
[Vehicle Code Section 13352(a).] Below is a description of
various license suspension terms and conditions for those
arrested or convicted of DUI or DUI causing great bodily
injury.
a) First Offense : When a person is convicted of DUI
without injury as a first offense, except under certain
circumstances, the person's license shall be suspended for
six months. This means unless the person meets other
criteria, he or she may not operate a motor vehicle for
that period of time. [Vehicle Code Section 13352(a)(1).]
The privilege to drive may only be reinstated, as defined in
other statutes, if the person shows proof of financial
responsibility and has completed the DUI program offered by
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the DMV, as specified. However, enrollment and completion
of the course must occur after the conviction. [Vehicle
Code Section 13352(a)(1).]
When a person is convicted of DUI causing bodily injury, the
privilege to operate a motor vehicle shall be suspended for
one year. Again, the privilege may only be reinstated if
he or she can show proof of financial responsibility and
successful completion of a DUI program. [Vehicle Code
Section 13352(a)(2).]
When a person is arrested (before conviction) for DUI as a
first offense, existing law allows the DMV to suspend his
or her license immediately. [Vehicle Code Section
13353.2(a)(1).] The period of suspension for a first
offense is four months assuming the driver did not refuse a
chemical test, as specified. [Vehicle Code Section
13353.3(b)(2).] Notwithstanding that provision, if a
first-time DUI arrestee shows proof of enrollment in a DUI
program and is 21 years of age or older, he or she may get
a restricted license after 30 days. A restricted license
means the driver may only drive to and from specific
places, such as the DUI program, work and/or school.
[Vehicle Code Section 13353.7(a).] The restriction shall
be in effect for a period of five months. [Vehicle Code
Section 13353.7(a)(3).]
b) Second Offense : A person convicted of DUI as a second
offense shall have his or her license suspended for a
period of two years. [Vehicle Code Section 13352(a)(3).]
The privilege to operate a motor vehicle may be reinstated
with restriction after one year where the person show proof
of financial responsibility, enrollment in a DUI program
and proof of installation of an IID. [Vehicle Code section
13352 (a)(3)(A) to (F).]
When a person is convicted of a second offense DUI with
injury, his or her license is suspended for three years
although he or she may get a restricted license after one
year upon a showing of proof of financial responsibility,
enrollment in a DUI class and proof of installation of an
IID. [Vehicle Code Section 13352(a)(4).]
A person who has been previously convicted of DUI and is
arrested again for DUI shall have his or her license
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suspended for a period of one year. [Vehicle Code Section
13353.3(b)(2).]
c) Multiple Offenses : A person convicted of DUI for a
third offense shall have his or her license suspended for a
period of three years. A person may receive a restricted
license after one year if he or she shows proof of
financial responsibility, enrolls in a DUI class and shows
proof of installation of an IID. [Vehicle Code Section
13352 (a)(5).] If convicted of a third offense of DUI with
injury, a person's license to operate a motor vehicle shall
be suspended for a period of five years with the ability to
get a restricted license if he or she demonstrates, among
other things explained above, proof of installation of an
IID. [Vehicle Code Section 13352(a)(6).] If a person is
convicted of a DUI for a fourth offense, he or she shall
receive a license suspension for a period of four years.
He or she may also get a restricted license after one year
if he or she shows proof of, among other things,
installation of an IID. [Vehicle Code Section
13352(a)(4).]
This bill states that for a first DUI conviction, a person
must install and maintain an IID for a period of five months.
Under existing law, a person's license is suspended for a
period of six months upon conviction. However, upon arrest,
the DMV may suspend a license for a period of four months; but
if the driver enrolls in and completes a DUI program, he or
she may get a restricted license after 30 days, effective for
five months. This assumes the offender does not contest the
DUI at the administrative per se hearing, in which case
suspension will be stayed pending the outcome of the hearing.
Generally, restriction terms are for the remaining period of
suspension if the offender enrolls in and completes the DUI
program.
4)Driving on a Suspended License : When a person is convicted of
DUI, he or she may not take the necessary steps to re-instate
his or her license. Hence, when that person is apprehended
driving again, he or she faces the additional misdemeanor of
driving on a suspended license when the suspension is the
result of a DUI. If an offender's license is suspended for
reasons relating to DUI, the penalty upon conviction is more
severe than for reasons not related to DUI. A person who
operates a motor vehicle when his or her license is suspended
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for DUI is punished as follows: for a first offense, the
court shall sentence an offender to not less than 10 days and
not more than six months in county jail and a fine of not less
than $300 and not more than $1,000. If the court grants
probation, the court must sentence the offender to a term of
10 days in county jail as a condition of probation; for a
second or subsequent offense committed within five years, the
court shall impose a sentence of not less than 30 days in
county jail and not more than one year and by a fine of not
less than $500 and not more than $2,000. If the court grants
probation, the court must sentence the offender for a period
of 30 days. If an offender is convicted of a second or
subsequent offense within seven years but over five years and
the court grants probation, the court must sentence the
offender to a term of 10 days in county jail as a condition of
probation. [Vehicle Code Section 14601.2(d) to (g).]
Existing law also allows the DMV to suspend a person's license
for failing to provide a chemical or breathe test upon request
by a peace officer. The penalties for operating a motor
vehicle on a suspended license when the suspension is based on
a refusal to submit to a chemical test are as follows: for a
first offense, a court may sentence for a term of not more
than six months in the county jail, a fine of not less than
$300 and not more than $1,000 or by both imprisonment and
fine; an offender convicted of second or subsequent offense
within five years must be sentenced to a minimum of 10 days
and not more than one year in county jail and by a fine of not
less than $500 and not more than $2,000. [Vehicle Code
Section 14601.5(d)(1) and (2).] As noted above, when a person
is convicted of driving on a suspended license where the
suspension is the result of a DUI, the court must require
installation of an IID. [Vehicle Code Section 23575(b).].
Recent amendments to the Vehicle Code which will become
operative on July 1, 2009 make various changes to the IID
requirements in existing law and are explained below.
5)Other States and the Federal Government : New Mexico passed
the nation's first mandatory IID law for all DUI offenses in
2005. Forty-three states allow courts to apply IIDs where
they deem appropriate, including California. Since 2005,
three other states, Arizona, Louisiana and Illinois, have also
passed mandatory IID laws and several other states have
mandatory IID laws pending. According to USA Today, New
Mexico passed the law as a response to statistics that showed
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a high rate of DUI fatalities. "New Mexico, which ranks sixth
in the nation in the rate of alcohol-related car fatalities,
is becoming one of the toughest enforcers. There are 3000
interlocks on cars in the state, the highest per capita of any
state." [Nasser, States Turn on to Idea of Ignition Locks,
USA Today (June 23, 2005);
< www.usatoday.com/news/nation/2005-06-23-drunk-driving_x.htm >.]
However, one article suggests that more than 50% of people
who are supposed to install IIDs have not done so.
[Addressing Loopholes with New Mexico's Ignition Interlock
Law, .].
One report from the Pacific Institute for Research and
Evaluation studied the success of IIDs in New Mexico and
concluded, "The study provides evidence that interlocks are as
effective with first offenders (approximately 60% reduction in
recidivism when on the vehicle) as they are for multiple
offenders." [Voas, et al., Interlocks for First Offenders:
Effective?, Pacific Institute for Research and Evaluation
(July 27, 2007).] It is unknown from the report what level of
peer review has occurred before or after publication.
The Wisconsin Department of Transportation stated in its report
that "IIDs have a place in preventing recidivism, but some
have also suggested that better results could be achieved by
disaggregating offenders for more individualized treatment.
In controlled studies, IIDs work in the short term, while they
are on the car, but it appears that there is not any long-term
behavioral effect." The report also suggests that to defray
to costs of IIDs, a dollar-for-dollar reduction in fines
associated with license reinstatement or court costs might be
advisable. [Executive Summary: Ignition Interlock Devices and
Vehicle Immobilization, Summer 2003;
.]
The Arizona Legislature passed its mandatory IID law in June
2007 but has since sought a repeal of the statute. The
Arizona Star reported, "Saying they made a mistake, state
representatives voted Tuesday to repeal the newly enacted law
requiring motorists convicted of any drunk-driving offense to
install an ignition interlock device. But the interlock
requirement has already been signed by the Governor, and
backers say it's too late for the House to change its mind.
The voice vote in the House on the amendments to SB 1582 came
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after Rep. John Kavanagh, R-Fountain Hills, said he and his
colleagues were acting on incomplete and in some cases,
incorrect, information when concluding last month that
requiring interlocks will cut down on accidents . . . . "
[Fischer, AZ House Backpedals, Asks Repeal of Tougher DUI Law,
AZ Star (June 13, 2007); .]
Arizona appears to have enacted its mandatory IID law
effective January 1, 2009. [Ariz. Transportation Code Section
28-1461(1)(a).]
The Federal Government forcibly expressed its preference for
IIDs in 1998 with the passage of the Transportation Equity Act
for the 21st Century. Relevant provisions state, "Repeat
intoxicated driver law. The term 'repeat intoxicated driver
law' means a State law that provides, as a minimum penalty,
that an individual convicted of a second or subsequent offense
for driving while intoxicated or driving under the influence
after a previous conviction for that offense shall . . . be
subject to the impoundment or immobilization of each of the
individual's motor vehicles or the installation of an ignition
interlock system on each of the motor vehicles . . . . " [23
U.S.C. Section 164(a)(5)(B).] As evidenced by the title for
the section, the recommendation on IIDs was reserved only for
subsequent DUI offenders. The Federal Government did pass
legislation tying this provision to highway funds, but
California is in compliance because California has provisions
that authorize the court to mandate an IID where appropriate
and any person who wants to receive a restricted license after
a second or subsequent conviction for DUI or any person
convicted of driving on a suspended license, as specified,
must install an IID.
6)The Technology of Ignition Interlock Devices : Although IID
technology has been in use since the 1960's, recent
technological advances have made use of the device easier and
more reliable. A published 2002 report of the University of
Pittsburg School of Law further explains the technology of
IIDs, "Ignition interlocks employ one of two basic types of
sensors to measure the breath alcohol concentration 'BrAC': a
semiconductor sensor or an electrochemical sensor. Each type
of sensor has its relative advantages and disadvantages,
although both types are commercially available. The
semiconductor sensor, also called a solid-state or Taguchi
sensor, measures alcohol by detecting the change in electrical
resistance of a circuit exposed to volatile hydrocarbons. The
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major advantages of this sensor are its accuracy, low price,
and its durability. However, this sensor suffers from two
significant drawbacks. First, the device requires frequent
calibration. Second, the device is not specific to alcohol.
Many hydrocarbons including motor vehicle exhaust and even
cigarette smoke affect the response. Either of these
drawbacks may produce an unacceptably high frequency of false
positive readings, which greatly hinders the efficacy of the
interlock program. False positive readings unjustly prevent
the driver from operating the vehicle, and they prevent the
program supervisor from determining whether the operator is
attempting to drink and drive. The electrochemical or fuel
cell sensor overcomes both these drawbacks. An
electrochemical sensor measures alcohol concentration by
detecting the electrical current generated by the oxidation of
alcohol.
"This sensor has greater stability in calibration, which reduces
maintenance requirements. More importantly, the device is
specific to ethyl alcohol, thereby greatly reducing false
positives. Its relative disadvantage is its higher cost.
While both the semiconductor and fuel cell sensor technologies
have clear relative advantages and disadvantages, either type
of sensor can perform satisfactorily. This is because an
ignition interlock's usefulness does not depend on its ability
to make precise distinctions in BAC levels. Its purpose is
simply to determine whether a person's BAC is above or below a
preset lockout limit.
"As the fundamental purpose of the ignition interlock is to
prevent an intoxicated person from operating a vehicle, the
BAC cutoff is usually safely set to a small, non-zero value,
typically 0.025%. This small level compensates for drift in
the zero-point calibration value, thereby greatly reducing
false positives, while, at the same time, minimizing the risk
of an alcohol-impaired driver operating a vehicle.
"In addition to advances in alcohol sensor technology, there
have been improvements in the prevention of interlock
circumvention and tampering. Circumvention or tampering
refers to any attempt to bypass the ignition interlock through
mechanical or electrical means, or by providing a bogus air
sample. A key tool in hampering attempts to bypass the
interlock is a data recorder.
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"A data recorder documents all uses of the vehicle as well as
all attempts to circumvent or tamper with the device. Among
the parameters recorded are: date and time of vehicle use,
pass/fail records, BrAC levels, all attempts to disengage the
device, and maintenance records. A means for backing up the
data is necessary in case of power interruption. Along with
the data recorder, another anti-circumvention feature is the
'rolling retest' requirement. This requires the driver to
supply another breath sample between 5 and 30 minutes after
starting the vehicle. The rolling retest is the most
effective means to thwart circumvention of the interlock by
having a surrogate provide a breath sample at the curb.
Failure of the rolling retest does not risk catastrophe by
disabling the vehicle. The data recorder merely logs the
failure. Additional appropriate action might include flashing
the headlights, setting off an alarm, or locking out the
driver unless she reports to a service center after a
specified number of days. [Neugebauer, Alcohol Ignition
Interlocks: Magic Bullet or Poison Pill? University of
Pittsburg Journal of Technology Law and Policy, Spring 2002;
See also, National Highway Traffic Safety Administration,
Review of Technology to Prevent Alcohol Impaired Crashes, July
2007, (hereinafter NHTSA report).]
A more recent study conducted by the National Highway Traffic
Safety Administration (NHTSA) described one form of
technology, tissue spectroscopy, "Spectroscopes are devices
that measure the proportion of a beam of light that is
absorbed or reflected by a sample at various wavelengths. The
concentration of ethanol in tissue changes its absorption of
near-infrared (NIR) light at certain wavelengths. This
phenomenon allows estimation of BAC by measuring how much
light has been absorbed at particular wavelengths from a beam
of NIR reflected from the tissue of the subject. Infrared
light easily penetrates several millimeters of tissue; hence
the reflected signal reveals information about the tissue to
that depth. This makes NIR reflectance spectroscopy
relatively insensitive to contaminants on the surface of the
skin. Because the reflected spectrum is affected by many
other chemicals present in the skin, the estimation relies on
a complex statistical process called a partial-least squares
model.
"The accuracy of a statistical estimation process depends on the
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quantity and quality of the input data, which is a function of
the number of different wavelengths that are measured and the
number of times each is sampled. Data quality is affected by
physical properties of the detector, such as bandwidth, noise,
linearity, and stability. Achieving narrow bandwidths at low
cost is particularly challenging. Reducing the size, cost,
and measurement time of the tissue spectrometer while
maintaining data quality will require a substantial effort in
technology development, testing, and refinement. There are
also physiological questions that must be resolved. The soft,
thin skin on the underside of the forearm works well for
reflectance spectroscopy. Little is known about the
reflectance characteristics of the thicker, tougher skin of
the palms and fingers, or perfusion rates in various parts of
the hand, or the effects of the bones that lie close to the
skin. Initial published data comparing estimates of BAC made
with tissue spectroscopy against true BAC show excellent
correlation. These results represent levels of accuracy,
sensitivity, and specificity to ethanol that are far superior
to other known methods of measuring alcohol impairment that do
not involve extraction of bodily fluids. Testing of a
prototype by the Bernalillo County, New Mexico, Sheriff's
Department will begin in the autumn of 2007. (NHTSA at
Executive Summary, xi.)
The NHTSA report also states, "The breath-alcohol ignition
interlock device (BAIID) is an aftermarket product hardwired
into the ignition circuit of a vehicle that prevents starting
until a breath sample has been given, analyzed for ethanol
content, and found to be below programmed limits. Currently,
about a third of repeat-DUI offenders are using interlocks,
along with a very small fraction of first offenders.
Collectively, there are only about 100,000 units in use, as
compared with more than one million DUI arrests per year.
BAIIDs have been found to reduce DUI recidivism by 40 percent
to 90 percent in various studies. However, crash rates for
interlock users are higher than for nonusers, because the
latter have their licenses revoked and tend to drive less and
with particular effort to avoid police attention. Best
available data indicates that the crash rates of the interlock
users are essentially equal to those of average drivers.
"The low rate of use of BAIIDs is mostly the result of
institutional factors, rather than shortcomings in the
technology. However, technology improvements over the next
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decade are likely to decrease costs and inconvenience to users
by extending the interval between visits to have the BAIID
serviced. Solid-state breath alcohol monitors are sold as
screening devices and have been proposed for primary
interlocks. They lack the accuracy and ethanol-specificity of
fuel cells, but have substantial advantages in terms of size,
cost, and power consumption, especially for installation in a
cell phone or a key fob. Recently developed solid-state
detectors are claimed to have much better accuracy and
specificity than the tin-oxide cells (Taguchi cells, named
after the inventor) found in most screening devices in current
use. Some of the prototypes for primary interlocks developed
in Sweden use these new technologies, but details are
proprietary, as are data on the accuracy and reliability of
these devices. The Swedish government is considering making
them. (NHTSA at Executive Summary, ix.)
7)Report of the DMV on the Effectiveness of IIDs : Commissioned
by the Legislature in AB 762 (Torlakson), Chapter 756,
Statutes of 1998, the DMV released two reports regarding the
implementation and effectiveness of IIDs in California. In
commenting on the use IIDs for first-time offenders, the
report concluded, "The results of this outcome study clearly
show that IIDs are not effective in reducing DUI convictions
or incidents for first DUI offenders, even those with high
BACs at arrest. While their high blood alcohol levels suggest
that they are an alcohol-dependent population, ignition
interlock does not appear to be the answer in reducing their
drinking and driving risk. This conclusion finds support in a
study that interviewed drivers, and found that first offenders
were more hostile to interlocks and regarded them as less
useful, compared to repeat offenders (Baker, 1998). Because
there is no evidence that interlocks are an effective traffic
safety measure for first DUI offenders, the use of the devices
should not be emphasized, even for those first offenders with
high BACs at the time of arrest, as is currently done in
California Vehicle Code Section 23575(a)(1)." [Department of
Motor Vehicles, An Evaluation of the Effectiveness of Ignition
Interlock in California (hereinafter DMV Report) (September
2004).]
However, the DMV Report does recommend introduction of
legislation that would allow repeat DUI offenders who install
IIDs to reinstate their driver's licenses early after serving
their APS suspension or court-ordered DMV suspension. The DMV
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Report states, "The results of this study show that second DUI
offenders who serve half of their sentence suspension period,
and install an IID in order to obtain a restricted driver
license, have a lower risk of DUI recidivism that their
counterparts who remain suspended. This supports the findings
of a randomized study of multiple DUI offenders in Maryland,
who installed IIDs in order to reinstate their driver licenses
(Beck et al., 1999). While the results of both studies
generalize only to those repeat DUI offenders who choose to
install an IID, they do clearly show that interlocks can be
effective for repeat offenders." (DMV Report at 18.)
Finally, the DMV Report suggests, "One way to encourage more
repeat offenders to install interlocks is to shorten their
period of suspension if they install the device. Currently,
repeat DUI offenders receive a one-year APS suspension upon
arrest and upon conviction receive another suspension of two
years or longer, depending upon their number of prior DUI
convictions. By requiring repeat DUI offenders to serve only
the shorter APS suspension if they install an IID, it is
likely more repeat offenders will choose to install an
interlock. It is important that a period of license
suspension, such as the term required under APS, remain in
effect, as numerous studies have shown that license suspension
is one of the most effective countermeasures for DUI
offenders." (DMV Report at 18.) Does it make more sense to
amend existing Vehicle Code provisions to allow for a
restricted license earlier where the offender installs an IID?
The evidence seems to suggest that IIDs are only effective
when they are actually installed rather than just required.
By providing an opportunity to drive earlier, more offenders
will actually install the IID. This bill specifies, among
other things, a mandatory length of time for which an IID must
be installed in order to receive a restricted or reinstated
driving privilege. Is this the most effective way to reduce
subsequent DUI offenses? Will provisions of this bill make it
impossible for an offender to ever obtain his or her license
even after the period of suspension ends?
8)Cost of IID and the Need for Administrative Oversight : The
cost of an IID varies depending on the nature and type of the
device and the jurisdiction in which it is installed. In New
Mexico and Arizona, USA Today placed the cost of an IID per
year at $1,000. [Nasser, States Turn on to Idea of Ignition
Locks, USA Today (June 23, 2005), AB 91
Page 18
news/nation/2005-06-23-drunk-driving_x.htm>.] Costs also vary
depending on whether the unit is rented or purchased, with the
latter being more expensive. According to information
provided by the California Highway Patrol, there are
approximately eight IID providers in California, with over 158
locations. The largest provider appears to be Consumer Safety
Technology with 65 locations. As Consumer Safety Technology
is the largest provider, that model may be used to assess
average costs. It places the cost of unit rental,
installation, verification of installation, removal and reset
at a total of $265. The rental is a monthly cost of $70.
Under the terms of this bill and provisions of existing law,
the offender is required to recalibrate and maintain the
device every 60 days. Reset cost is $35; presumably reset
occurs when the machine is recalibrated - $35 every 60 days.
The cost per year to recalibrate the machine would be $210 at
$35 every six months. The cost of rental at $70 per month for
the year is $840. The total cost to maintain and rent the IID
is approximately $1,050. That amount ($1,050) is in addition
to the cost of installing and removing the device. That cost
is $135: $70 for installation and $35 for removal. All
California providers do offer fixed or sliding scale
reductions of costs based on various factors such as stated
yearly income, employment status, or federal tax returns.
Amendments to this bill now require an IID provider to adjust
the cost of the IID based on the federal poverty level. The
2009 Federal Poverty Income Guidelines states a singular
person with annual income of $32,490 or more is considered
300% of the federal poverty level. The amendments mandate a
person who is more than 300% of the federal poverty level must
pay 100% of the fees for the IID and the $120 alcohol and drug
assessment fee. If a person is at an income of 100% or less,
meaning he or she has an annual income of $10,830 or less,
this bill provides he or she shall only pay 10% of the drug
and alcohol assessment and cost of the IID. If he or she
makes between $10, 830 and $21,660, he or she would be
required to pay 25% of the costs. If the offender makes an
annual salary between $21,660 and $32,490, he or she would pay
50% of the costs for the IID and the costs of the assessment.
It is unclear who will absorb the remainder of the costs when
the offender cannot pay. This bill also states that an IID
provider may not raise the price of an IID beyond what is
calculated in the Federal Consumer Price Index (CPI). The CPI
documents the average change in prices paid for representative
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goods and services by shoppers in urban areas.
( www.bls.gov/cpi ).
DMV regulations and existing law do provide some administrative
oversight of IID providers. Pursuant to the Vehicle Code and
the Code of Regulations, all IID providers must be certified
by the DMV and be available to the consumer in case of error.
[See 13 Cal. Code Regs. 125.01 et seq.; Vehicle Code Section
13386.] Although DMV is required to certify the IID
providers, it is important to create a significant amount of
administrative oversight to ensure consumers are protected in
the case of IID failure. If a provider is licensed by the DMV
and subsequently declares bankruptcy or otherwise fails to
assist the consumer in recalibration, maintenance or removal,
processes should be in place to assist the consumer in a
timely fashion. It is unclear from the regulations what
happens if an IID fails; the provider is not complying with
existing provisions to have a 24-hour hotline, as specified by
existing law; and is not attempting to fix the problem. DMV
should have an expedited review process to evaluate claims and
provide relief where necessary.
9)Judicial Discretion Regarding IID : As noted above, this bill
will require an IID where an offender faces a license
suspension for DUI, as specified. A court may require a
person convicted of a DUI to install an IID unless he or she
is convicted of driving on a suspended license where the
suspension is the result of a DUI as explained above. Does
this bill unjustly eliminate judicial discretion? "The attack
on judicial discretion underway in California is not only
unwarranted - because such discretion has not been used to
favor criminal defendants nor misused under any rational
standard - but threatens the quality of American justice. To
be sure, the prevailing theory that a sentence is punishment,
the degree of which need only comport with the seriousness of
the crime, requires more uniform application of consistent
standards than was appropriate under the rehabilitative penal
model previously in fashion. Absolute uniformity will result
in injustice, however, if trial judges are deprived of any
ability to adjust sentences in atypical cases, in which the
harmfulness of a particular offender's conduct or the extent
of his or her culpability differs substantially from the norm.
Handcuffing the judiciary will not even create genuine
conformity because disparities will instead be created by
different prosecutorial charging policies. In effect,
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discretion has not been eliminated; it has simply been shifted
from impartial judges to partial prosecutors who are more
vulnerable to political pressure." [Honorable J. Anthony
Kline, "The Politicalization of Crime", 46 Hastings L.J. 1087
(1995).] It is possible that by requiring the offender to
install an IID and current law places the monitoring
responsibilities more securely in the hands of the DMV, the
true value of IIDs will become evident. [See SB 1388
(Torlakson), Chapter 404, Statutes of 2008.]
10)Four-County Pilot Program : The 14th Amendment of the U. S.
Constitution states in relevant part, "No state shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws." [U.S. Const.
Am. 14, 1]. The California Constitution echoes the same
language. [Cal. Const. Art. 1, 7]. The purpose of the 14th
Amendment is to limit state action in such a manner as to
protect the civil rights and liberties of citizens. [See The
Civil Rights Cases (1883) 109 U.S. 3; Stephens & Scheb,
American Constitutional Law: Civil Rights and Liberties
(2008), p. 20.] This bill creates a four-county pilot program
that requires a DUI offender to install in an IID. A person
convicted of DUI in Sacramento will have a duty to install an
IID, whereas a defendant convicted in Fresno County will not.
Hence, two different criminal defendants who have been
convicted of DUI and are in different counties will be treated
differently. When government makes a distinction between two
similarly situated persons in a manner that appears unequal,
an equal protection claim may arise.
"It is a fundamental principle that, '[t]o succeed on [a] claim
under the equal protection clause, [a defendant] first must
show that the state has adopted a classification that affects
two or more similarly situated groups in an unequal manner.'
(Internal citation omitted). 'In considering whether state
legislation violates the Equal Protection Clause of the
Fourteenth Amendment . . . we apply different levels of
scrutiny to different types of classifications. At a minimum,
a statutory classification must be rationally related to a
legitimate governmental purpose. Classifications based on
race or national origin . . . and classifications affecting
fundamental rights . . . are given the most exacting scrutiny.
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Between these extremes of rational basis review and strict
scrutiny lies a level of intermediate scrutiny, which
generally has been applied to discriminatory classifications
based on sex or illegitimacy.' (Internal citation omitted)
['equal protection provisions in the California Constitution
have been generally thought . . . to be substantially
equivalent of the equal protection clause of the Fourteenth
Amendment to the United States Constitution.' " [People vs.
Wilkinson (2004) 33 Cal. 4th 821, 837.]
"In resolving equal protection issues, the United States Supreme
Court has used three levels of analysis. Distinctions in
statutes that involve suspect classifications or touch upon
fundamental interests are subject to strict scrutiny, and can
be sustained only if they are necessary to achieve a
compelling state interest. Classifications based on gender
are subject to an intermediate level of review. But most
legislation is tested only to determine if the challenged
classification bears a rational relationship to a legitimate
state purpose." [In re Smith (2008) 42 Cal.4th, 469; People
vs. Hofsheier (2006) 37 Cal.4th 1185, 1200]. If viewed in a
light most favorable to the author, the distinction drawn by
this bill would likely only yield a rational basis analysis.
In that case, the state must prove the measure is rationally
related to a legitimate government purpose. It could be
argued that a four-county pilot program is necessary to test
the effectiveness of IIDs on DUI rates in California. A court
will likely determine the State has a legitimate interest in
curbing DUI satisfying the Equal Protection Clause.
11)Treatment for DUI offenders : In 2005, the Legislature
enacted a pilot program in city of Sacramento that, among
other things, authorized vehicle impoundment for up to 30 days
and alcohol-related "intervention" for individuals suspected
of DUI when the driver has suffered a prior DUI-related
conviction. [SB 547 (Cox), Chapter 159, Statutes of 2005.]
SB 547 also required that the "intervention" be staged with an
alcohol or drug-related counselor. It is unclear how the
treatment provisions of SB 547 dealing with alcohol-related
treatment for DUI offenders above and beyond existing law are
working in Sacramento County or what evidence of effectiveness
might be available. This bill requires the DUI offender to
participate in a county alcohol and drug problem assessment as
a condition of having his or her license reinstated. Existing
law requires a first offender to enroll in and complete the
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First Offender Program (FOP). [Vehicle Code Section
23538(b).] The FOP is licensed by the State Department of
Alcohol and Drug Programs. The offender must enroll in and
complete the FOP as a condition of probation. If he or she
does not enroll in and complete the FOP, probation may be
revoked and the defendant may be sentenced to jail. If the
offender has a high BAC (.20%), he or she is required to
complete at least three months in a licensed program and at 30
hours must be devoted to program activities, including
education, group counseling, and individual interview
sessions. [Vehicle Code Section 23538(b)(1).] A second or
subsequent offense DUI requires the offender to enroll in and
complete18 to 30 months in a licensed DUI course. [Vehicle
Code Section 23542(b)(1) and (2); Vehicle Code Section
23548(b).] This bill does not affect the duty of the
defendant to enroll in and complete the FOP or any other
court-ordered DMV program.
12)County Alcohol and Drug Problem Assessment Program : Under
existing law, a county alcohol program administrator shall
develop, implement, operate and administer an alcohol and drug
problem assessment program for persons convicted of DUI.
[Vehicle Code Section 23646(a).] A court may order any person
convicted of DUI or DUI with injury to undergo an alcohol or
drug problem assessment and if the court so orders, the
defendant is obligated to comply. [Vehicle Code Section
23646(b)(2); Vehicle Code Section 23647(a).] Each county is
required to prepare, or contract to be prepared, an alcohol
and drug problem assessment report where the court orders such
an assessment on a criminal defendant. [Vehicle Code Section
23648(a).] The assessment report shall include a
recommendation for any additional treatment and the duration
of the treatment. The treatment, as specified, shall be in
addition to the education and counseling program required by
the DMV. [Vehicle Code 23648(b); Health and Safety Code
Section 11837(a).]
Within 30 days of receiving the report, the court shall order
the defendant to complete the recommendation described in the
report as a condition of probation. If the court elects not
to order the completion plan, the court shall specify on the
records its reason for not adopting the recommendations.
[Vehicle Code Section 23648(c).] This bill states that every
offender convicted of a DUI or DUI with injury in one of the
specified four counties must submit to the drug and alcohol
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problem assessment. Under existing law, participation in a
county alcohol and drug problem assessment and adherence to
its recommendations may be a condition of probation. Hence,
failure to either submit to the assessment or comply with the
recommendations may result in a violation of probation and
additional jail time. Is the intent of this bill to create an
additional condition of probation for DUI? Or simply to create
an additional DMV requirement in order to receive a
restricted, reinstated or re-issued license? Moreover, not
every offender who is convicted of driving under the influence
is an alcoholic or an addict. Is this tool appropriate for
offenders with no history of addiction?
13)Implications of SB 1388 (Torlakson), Chapter 404, Statutes of
2008 : Last year, the Legislature enacted SB 1388 (Torlakson)
giving DMV more control over the issuance of IIDs required
under existing law. Before passage of IID, the court required
an offender convicted of DUI-related driving on a suspended
license to install an IID. [Vehicle Code Section 14601.2(h).]
The purpose of SB 1388 was to ensure offenders were complying
with existing provisions of law. Although courts were
required to order the offender to install an IID, the offender
often did not comply with no consequence. SB 1388 placed the
responsibility on the DMV to notify the defendant of his or
her responsibility to install an IID.
If the offender is convicted of driving on a suspended license
where the suspension is based on a DUI, he or she must install
and maintain an IID for a period of one year. [Vehicle Code
Section 23573(j)(1).] If a person is twice convicted of DUI
or DUI with injury or has a previous conviction for driving on
a DUI-related suspended license, an offender must install an
IID for a period of two years. [Vehicle Code Section
23573(j)(2).] If a person is convicted three times for DUI or
twice for a DUI-related driving on a suspended license, he or
she must install and maintain an IID for three years.
[Vehicle Code Section 23573(j)(3).] Failure to install an IID
as directed by DMV is a misdemeanor punishable by up to six
months in the county jail and/or by fine of not more than
$5,000. [Vehicle Code Section 23573(i).] SB 1388 also
included various exceptions to installing an IID including
instances where the offender does not own or have access to a
car. [Vehicle Code Section 23573(g)(1)(A).]
Moreover, SB 1190 (Orapeza), Chapter 392, Statutes of 2008,
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required the DMV to study the effectiveness of IID. SB 1190
states, "The department may undertake a study and report its
findings of that study to the Legislature on or before January
1, 2013, regarding the overall effectiveness of the use of
ignition interlock devices (IID) to reduce the recidivism rate
of first-time violators of Section 23152 or 23153 [DUI or DUI
with injury]. If the department exercises this authority, the
study shall focus on those drivers who actually have an IID
installed in their vehicles rather than on those who are
subject to a judicial order to have an IID installed."
(Vehicle Code Section 23575.1.) This bill also requires the
DMV to report on the effectiveness of the proposed pilot
program in reducing the number of first time violations and
repeat offenses of DUI. The report is due on or before
January 1, 2014.
14)Arguments in Support :
a) Los Angeles Police Department (LAPD), "DUI of alcohol is
a major problem in society today. Each year, thousands of
community members are injured or killed as a result of
traffic collisions involving drivers under the influence of
alcohol. The Los Angeles Police Department is confident
that this legislation will go a long way toward reducing
alcohol-related traffic offenses. It is the police of the
LAPD to facilitate the safe and expeditious movement of
vehicular and pedestrian traffic through the streets of Los
Angeles. Traffic collisions are investigated to protect
the rights of the involved parties, care for the injured,
and determine the causes of accidents so that methods of
prevention may be developed. In 2008, there were 2894
reported DUI-related traffic offenses that resulted in
collisions. Of that number, 95 resulted in serious injury
or fatalities. AB 91 will prevent convicted DUI offenders
from adding to the carnage of alcohol-related offenses.
The negative impact that alcohol has on society is
overwhelming. The combination of alcohol and driving are
particularly precarious because of the impact drugs have on
a person's ability to physically control a vehicle. AB 91
is another significant weapon to be utilized by law
enforcement entities to combat this notorious problem. The
LAPD is certain that AB 91 will assist law enforcement
officers throughout the state with saving lives.
b) Mothers Against Drunk Driving : "In 2006, MADD launched
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its Campaign to Eliminate Drunk Driving. The Campaign is
comprised of four prongs, one of which recommends interlock
usage by all convicted drunk drivers. Passing mandatory
ignition interlock legislation remains MADD's number one
legislative priority. AB 91 mirrors mandatory interlock
legislation that ahs been introduced in over twenty-five
legislatures throughout the country during the 2009
Legislative Session. California needs ignition interlock
legislation. AB 91 provides for a four county pilot
interlock program. The four-counties that have been
selected for this program account for over 73,000 of
California's 2006 statewide DUI arrests. Mandating
interlock usage for convicted DUI offenders in the four
populous counties of Los Angeles, San Diego, Alameda and
Sacramento is a significant step forward in addressing
California's significant DUI problem. In 2006, Los Angeles
County and San Diego led California counties in DUI arrests
with 39,000 in Los Angeles County and 18,000 in San Diego
County. Data released by the Department of Transportation
in April 2008 provides a disturbing illustration of the DUI
problem in California. This data shows that there are over
310,000 people on California's roads with three or more DUI
convictions. In 2007, almost thirty percent of
California's traffic fatalities involved a drunk driver;
1,155 Californians lost their lives that year to a drunk
driver.
"Peer-reviewed studies confirm that a first DUI offense is
not synonymous with a first DUI conviction. On average, a
person who receives a first DUI conviction will have driven
at least 87 times drunk prior to receiving a first
conviction. Studies confirm that as much as 75 percent of
the population with licenses suspended or revoked for a DUI
conviction will continue to drive. The interlock is proven
to not allow them to drive drunk. Additionally, it's
proven to reduce DUI recidivism and fatal crashes. New
Mexico passed mandatory ignition interlock legislation in
2005 and has seen alcohol involved traffic fatalities
decline by over thirty percent, and DUI recidivism has
dropped by sixty-four percent.
"Many persons in the alcohol industry will argue interlocks
are only needed for 'hardcore' drunk drivers with a blood
alcohol concentration of a .15 or higher. Currently,
forty-five percent of all DUIs are caused by persons with a
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blood alcohol concentration between a .08 and a .14. How
can we say almost half of the persons arrested for DUI are
not part of the country's drunk driving problem? How can
we say that the life taken by a DUI offender with a .13
blood alcohol concentration level is less of a concern than
a life taken by a DUI offender with a .15 blood alcohol
concentration?"
15)Arguments in Opposition :
a) California Attorneys for Criminal Justice (CACJ) and the
California DUI Lawyers Association (CDLA), "This measure
eliminates judicial discretion in DUI cases prosecuted in
San Diego, Los Angeles, Sacramento, and Alameda Counties.
"Under current law, a person convicted of a DUI offense is
subject to severe criminal penalties and fines. This
includes incarceration, thousands of dollars in fines/fees,
an extensive probation period, driver's license suspension,
and other court orders. Additionally, the court may
require the installation of an IID.
"AB 91 will override judicial discretion and require IIDs in
every case without regard for the specific facts. This
one-size-fits-all approach is contrary to key, fundamental
criminal law principles, including ensuring that the
penalties are proportionate to the crime.
"As written, the IID requirement will equally apply to the
offender who had three glasses of wine at an after-work
reception and whose BAC is 0.10 as well as to the offender
with a history of alcohol addiction who was caught driving
with a 0.21 BAC. There is little justification to
eliminate a judge's discretion to determine whether those
two offenders should incur identical punishment and
conditions of probation. Yet, AB 91 eliminates this
discretion.
"Under current law, a judge must apply heightened
consideration of the need to order an IID for all offenders
with a 0.15 BAC or higher. The purpose of this statute is
to identify those drivers who appear to have a greater
problem with drinking and driving; current law presumes
that a person with a higher BAC is more likely to have a
drinking and driving problem. AB 91's one-size-fit-all
AB 91
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runs counter to this logical approach again and simply
eliminates judicial discretion for high and low BAC
offenders and instead requires even those offenders who are
nominally above the applicable limit to install an IID.
"CACJ and CDLA question the need to eliminate judicial
discretion. Our members who have handled DUI offenses have
rarely, if ever, witnessed a judge who is lenient with DUI
offenders. On the contrary, judges have proven to impose
harsh penalties in DUI cases. Therefore, there is little,
if any, justification for taking the decision-making out of
the hands of judges.
"The concept of mandatory IIDs for first-time offenders has
been included in numerous pieces of legislation over the
years. These efforts were unsuccessful in large part
because studies questions whether IIDs are effective
deterrents to future DUIs. In fact, a study by the
California DMV indicates that recidivism was equal, if not
higher, for those individuals who installed an IID, thereby
undermining significant justification for the bills.
"The study also indicated that when IIDs are used as
incentives, such as a shorter sentence of driving
suspension in exchange for IID, the compliance rate was
much higher. It appears that AB 91 simply ignores the
empirical results of the DMV study.
"Additionally, there are many questions left unanswered, such
as what qualifies as an 'enhanced' alcohol program as
required by AB 91? This appears to be an unwarranted boon
for companies offering this 'enhanced' class.
"AB 91 also fails to address whether a vehicle owned by an
employer is required to be outfitted with an IID. What if
it is a pool car? Will AB 91 exempt state, city and
county-owned pool cars? Who will shoulder the cost of
having the IID monitored and checked at the stated
intervals for these vehicles? What if this requires the
employer to take the vehicle out of rotation for a full
day?
"Do the provisions of AB 91 apply to motorcycles? If not, is
there an additional penalty to be applied to these drivers?
If not, is there an equal protection argument?
AB 91
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"Interestingly, in many cases, AB 91 imposes IIDs for a
period which exceeds the length of a driver's license
suspension; in fact, installment is not required until
AFTER the State of California has returned the ability to
drive back to the offender. If the State of California has
determined that an offender shall be granted full authority
to return to driving, why is AB 91 imposing a new condition
on what is otherwise the unconditional ability to drive?
"CACJ and CDLA are also troubled with AB 91's failure to
provide financial assistance for low-wage individuals who
cannot afford the cost of these IIDs. As drafted, even if
these individuals register 100% compliance with all other
terms and conditions of their sentence and probation, they
will be unable to obtain a valid driver's license if they
cannot pay the operational costs of the devices. We urge
you to reconsider this economic obstacle to rehabilitation.
"Lastly, AB 91 will likely result in the exponential increase
in the number of IIDs in California. However, this measure
does not include a corresponding increase in the regulation
of companies providing IIDs. How do we prevent the influx
of defective IIDs from fly-by-night companies looking to
cash in on the increased demand for devices?"
b) According to the American Beverage Institute , "The focus
of California's drunk driving legislation should be on the
high SAB and repeat offenders who cause the vast majority
of alcohol-related driving fatalities in the state. The
average BAC of drunk drivers involving in fatal accidents
in California is .18% BAC-more than twice the state's a
legal limit of .08%. Several studies have shown that
drivers are more dangerous talking on hands-free cell
phones than they are driving at .08%. And yet that is the
level at which this bill would mandate an ignition
interlock device-which, due to their fallibility and
intrusiveness, have heretofore been reserved for hard-core
offenders.
"California's punishment for speeding varies widely based on
the severity of the offense. California drivers going 15
mph over the speed limit are punished differently than
someone going 40 mph over the posted limit. While both
drivers have broken the law, the judicial system allows for
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a proportional response based on the different degrees of
risk that the drivers present on the highway. So to,
should judges be able to recognize that difference when it
comes to someone who is one sip over the legal limit versus
a person who has had 10 drinks prior to driving. But AB 91
imposes a sentence typically reserved for reckless product
abuses-installing an ignition interlock-on marginal, first
time offenders. ABI strongly supports interlock technology
for high-BAC and repeat DUI offenders. These constitute
the 'hard core' drunk drivers who don't benefit form
alcohol treatment and probationary programs the same way
most low-BAC, first time DUI offenders do. For those who
choose to drive while extremely intoxicated and those who
repeatedly flout the law, ignition interlock technology is
an effective and proper law enforcement response. But we
shouldn't punish someone who has one sip of wine over the
limit the same way we punish hardcore alcoholics."
16)Related Legislation : AB 808 (Fuentes) extends the period in
which a person may request an administrative per se hearing
for a DUI offense from 10 days to 90 days. AB 808 is pending
hearing by this Committee.
17)Prior Legislation :
a) AB 2784 (Feuer), of the 2007-08 Legislative Session,
would have required a person convicted of DUI, as
specified, to install an IID, as specified, in order to be
reissued a license, receive a restricted license, or
receive a reinstated license. AB 2784's provisions were
removed from that bill in the Assembly Committee on
Appropriations and replaced with the provisions of SB 1361.
AB 2784 was gutted, amended, and subsequently vetoed.
b) SB 177 (Migden) of the 2007-08 Legislative Session,
would have, among other things, recast and revised
provisions of law authorizing restricted licenses and
imposing additional requirements with respect to IIDs on
those restricted licenses and established the Ignition
Interlock Device Assistance Fund in the State Treasury. SB
177 was never heard in the Senate Committee on Public
Safety.
c) SB 1361 (Correa), of the 2007-08 Legislative Session,
would have required installation of an IID, as specified,
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for all offenders convicted of a DUI under certain
conditions. Those conditions included where there is a
high BAC for a first offender and for a second or
subsequent offender. SB 1361's provisions amended relevant
portions of the Vehicle Code to authorize the DMV to
reinstate the offender's license earlier than provided in
existing law if he or she shows proof of installation of an
IID. SB 1361 was vetoed.
d) SB 1388 (Torlakson), Chapter 404, Statutes of 2008,
required that a person immediately install a certified IID
on all vehicles he or she owns or operates for a period of
one to three years when he or she has been convicted of
violating specified provisions relating to DUI and driving
a motor vehicle when his or her license has been suspended
or revoked as a result of a DUI-related conviction.
REGISTERED SUPPORT / OPPOSITION :
Support
AAA of Northern California
American Academy of Pediatrics
Association of California Insurance Companies
Association of Los Angeles Deputy Sheriffs
California Emergency Nurses Association
California Hospital Association
City of Los Angeles
County of San Diego
County of San Diego Board of Supervisors
Crime Victims Action Alliance
Los Angeles Police Department
Mothers Against Drunk Driving
Peace Officers Research Association of California
Opposition
American Beverage Institute
California Attorneys for Criminal Justice
California DUI Lawyers Association
California Public Defenders Association
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744
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