BILL ANALYSIS AB 91 Page 1 Date of Hearing: May 20, 2009 ASSEMBLY COMMITTEE ON APPROPRIATIONS Kevin De Leon, Chair AB 91 (Feuer) - As Amended: May 4, 2009 Policy Committee: Public SafetyVote: 6-0 Judiciary 12-0 Urgency: No State Mandated Local Program: Yes Reimbursable: No SUMMARY This bill requires DMV to establish a five-county pilot program, in Alameda, Los Angeles, Orange, Sacramento and San Diego counties effective July 1, 2010 until January 1, 2015, to require a person convicted of driving under the influence (DUI) to (a) install an ignition interlock device (IID), as specified, on all vehicles he or she owns, and (b) participate in a county alcohol and drug problem assessment program. FISCAL EFFECT 1)Based on preliminary DMV estimates, one-time programming costs of about $300,000, plus annual costs for the life of the program of $500,000 to $800,000. These costs could eventually be covered by the proposed undetermined fee, which, based on preliminary estimates would likely be in the range of $50. It is not clear, however, that a sufficient number of offenders could or would pay the fee. Some offenders will simply not be able to afford the fee, which, with fines and assessments and an IID can exceed $6,000. Others will simply choose not to pay the fine and drive without a license. DMV acknowledges the tendency of convicted drunk drivers to simply drop out of the licensed driver population has become an issue of state and national concern. AB 91 Page 2 (The cost of an IID alone is in the range of $1,000 per year for rental, installation, and recalibration, though this bill requires IID providers to adopt a specified sliding fee schedule based on income and requires the IID provider to absorb the remaining cost.) 2)Costs in the range of $250,000 over the duration of the pilot for research activities necessary to gather data, evaluate the pilot and provide the Legislature a meaningful report. DMV notes these costs may ultimately be covered by research grants, potentially through the federal government, as DMV has been successful in attracting research grants in the past. 3)Significant non-state reimbursable county costs, potentially in the tens of millions of dollars in the five pilot counties, for expanded alcohol and drug treatment costs. San Diego County estimates, for example, that the mandatory alcohol and drug assessment program will cost the county $4.3 million if only 10% of county offenders are referred to a county treatment program. While the bill does provide for a $120 fee to pay for the assessment program, it is unlikely that all or many DUI offenders can pay the fee, which the bill acknowledges by including a sliding payment scale based on income. 4)Increasing fines, fees and assessments may have the unintended consequence of actually diminishing revenues. For example, a $2,000 fine for DUI with current maximum assessments would be $7,285, shocking defendants who think $2,000 means $2,000. Judges do have the discretion to reduce the base fine, which then reduces revenue to state and local governments, as well as to assessments and the programs they currently support. Indigent defendants facing ever-increasing fees may simply choose to spend time in jail in lieu of paying the fine, causing taxpayers to pay the jail costs while state and local government receive fewer penalty funds. Moreover, jail population caps in 27 counties may provide additional incentives to opt for jail time over fines, as the time served for nonviolent offenders may be minimal. As noted by the California Research Bureau (CRB) in its 2006 review of penalty assessments, "High penalty assessments may result in higher rates of default by the guilty parties. Some AB 91 Page 3 offenders may spend time in jail, or plea for community service, rather than pay the fine and penalty assessment. The end result may be that a substantial amount of fines, fees and revenue is not collected." SUMMARY CONTINUED Specifically, this bill: 1)Requires persons convicted of driving under the influence (DUI), including first-time offenders, to install an ignition interlock device (IID) in order to be reissued a license or a restricted license, as follows: a) For a first offense, five months. b) For a second offense, 12 months. c) For a third offense, 24 months. d) For a fourth offense, or any subsequent violation, 36 months. 2)Requires a person convicted of DUI causing bodily injury to install an IID in all vehicles operated by that person, as follows: a) For a first offense, 12 months. b) For a second offense, 24 months. c) For a third offense, 36 months. d) For a fourth offense, or any subsequent violation, 48 months. 3)Requires DMV, upon receipt of the court's abstract of conviction for DUI, to inform the convicted person of the term for which he or she is required to have IID installed. 4)Requires DMV to place a notation on the offender's driver's license record that restricts the driver to driving only vehicles equipped with certified IIDs. 5)Requires the DMV to monitor the installation and maintenance of IIDs. 6)Requires offenders to pay a fee, determined by DMV, to cover DMV's administrative costs. 7)Specifies the mandatory IID period shall be reset by the DMV AB 91 Page 4 if a person fails to comply with any of the requirements regarding IID installation and maintenance. 8)Provides exemptions from the IID requirement: a) If the person certifies to the DMV that the he/she does not own a vehicle or have access to a vehicle at his or her residence and acknowledges that he/she is only allowed to drive a vehicle fitted with an operating IID and is required to have a valid driver's license. b) A person required to operate a vehicle in the course and scope of his or her employment and the employer has been notified of the restricted driving privileges and that notification is in their possession while driving. Excludes a person from operating an employer vehicle if that entity is owned or controlled by the convicted person. c) Motorcycles, until such the state certifies an appropriate IID device. 9)Requires a county alcohol and drug treatment assessment program for any person convicted of DUI and requires payment of a $120 fee to pay the cost of the program, based on a specified sliding ability-to-pay scale. (Current law authorizes the court to make such an order and requires the order for a DUI within 10 years of a prior DUI.) 10)Requires manufacturers and agents certified by the DMV to provide IIDs to adopt a specified fee schedule for the costs of the IID, and requires that an IID provider be responsible for absorbing the cost of the IID that is not paid by the person. 11)Requires DMV to report to the Legislature by January 1, 2014 on the efficacy of the pilot in reducing the number of DUI violations and repeat offenses in the five pilot counties. 12)Specifies that this bill does not change provisions of existing law related to IID, which shall remain unchanged and apply as specified in those sections. COMMENTS 1)Rationale . The author contends IIDs have reduced DUI recidivism in other states, but have not been utilized sufficiently in California because the authority for IID AB 91 Page 5 installation rests with the state trial courts. According to the author, the courts lack the resources to properly administer current IID law and as a result, the courts order IID installation for a miniscule percentage of DUI offenders (less than 4% according to the author). The author states, "The remedy to this problem lies in requiring IIDs for all DUI offenders and moving the administration of mandatory IID implementation to the DMV. The DMV is the most properly situated department to adequately provide an efficient and effective method of implementing mandatory IID laws. IIDs will protect individuals to prevent them from driving under the influence while they attend mandatory DUI classes, protect their family, and most importantly, save lives." 2)2009 DMV DUI statistics show that the DUI arrest rate (per 100,000 licensed drivers) is down from 1997 (933 to 863) and that alcohol-related fatalities decreased by 7% in 2007, for the first year-to-year decrease after eight years of a rising trend. 3)Current law a) Authorizes the court to require a person convicted of first-time DUI or DUI causing bodily injury to install an 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 an IID. The court shall give priority IID consideration to a first-offense violator with a BAC of 0.20% or more, or with two or more prior moving traffic violations, or to persons who refuse 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. b) Requires an IID when a person is convicted of driving on a suspended license due to a DUI conviction, and after multiple DUI convictions, as specified. 4)An IID is a breath-alcohol testing device , about the size of a cell phone, which is installed on the steering column of a AB 91 Page 6 car. The IID prevents the vehicle from being started unless the driver blows into the device to demonstrate that he or she is alcohol-free. The cost of an IID varies, but runs about $1,000 per year, including unit rental, installation and periodic recalibration to determine whether the offender has attempted to remove or tamper with the IID, or if the offender has failed three or more times to comply with IID requirements. The cost of an IID is borne by the defendant, though IID vendors offer discounted rates based on ability to pay. 5)Other States . New Mexico passed the nation's first mandatory IID law for all DUI offenses in 2005. Forty-three states, including California, authorize courts to order IIDs when deemed appropriate. Since 2005, Arizona, Louisiana and Illinois, have also passed mandatory IID laws. 6)Research Reports . Pursuant to AB 762 (Torlakson), Statutes of 1998, the DMV released a report in 2005, An Evaluation of the Effectiveness of Ignition Interlock in California, which concluded in part that mandatory IID for first-time offenders are not effective and that the state should incentivize IID by allowing offenders who install an IID to have their licenses reinstated earlier. According to the report, "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)." AB 91 proponents cite a report from the Pacific Institute for Research and Evaluation, which studied the use of IIDs in New Mexico and concluded, "The study provides evidence that AB 91 Page 7 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).) 7)Support , including law enforcement, Mothers Against Drunk Driving, and insurance companies, contends IIDs are a powerful tool for addressing DUI recidivism. According to the L.A. Police Department, "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." 8)Opposition. California Attorneys for Criminal Justice (CACJ) and the California DUI Lawyers Association (CDLA) oppose what they see as an unnecessary diminution of judicial discretion in the absence of empirical data supporting mandatory IID for first-time offenders. "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?. "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, AB 91 Page 8 justification for taking the decision-making out of the hands of judges. 9)Related Legislation . a) AB 2784 (Feuer, 2008), similar to AB 91, was amended in this committee to reflect SB 1361 (Correa, 2008), which required installation of an IID, as specified, for repeat DUI offenders. SB 1361 created an IID incentive whereby DMV could reinstate the offender's license earlier than provided in existing law if the offender installed an IID. SB 1361 was vetoed. b) SB 598 (Huff), pending in Senate Appropriations, is similar to SB 1361. c) SB 1388 (Torlakson), Statutes of 2008, requires IID for repeat offenders, as specified. Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081