BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 91
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          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.










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            (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  








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            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  








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            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  








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            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  








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            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  








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            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,  








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            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