BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 9 1 AB 91 (Feuer) As Amended June 1, 2009 Hearing date: July 7, 2009 Vehicle Code MK:mc VEHICLES: DRIVING UNDER THE INFLUENCE (DUI); IGNITION INTERLOCK DEVICE HISTORY Source: Author Prior Legislation: SB 1190 (Oropeza) - Chapter 392, Statutes 2008 SB 1361 (Correa) - vetoed, 2008 SB 1388 (Torlakson) - Chapter 404, Statutes 2008 AB 2784 (Feuer) - until August 28, 2008, version SB 177 (Migden) - did not move 2007 AB 4 (Bogh) - held Assembly Appropriations 2005 AB 979 (Runner) - Chapter 646, Statutes of 2005 AB 638 (Longville) - prior to July 2, 2003, amends died on Concurrence 2003 AB 1026 (Levine) - failed Senate Public Safety 2003 AB 762 (Torlakson) - Chapter 756, Statutes of 1998 Support: MADD; Peace Officers Research Association of California; Association for Los Angeles Deputy Sheriffs; Los Angeles District Attorney's Office; Los (More) AB 91 (Feuer) PageB Angeles Police Department; the Los Angeles County Sheriff's Department; Sacramento County Sheriff's Department; Sacramento Police Officers Association; Sacramento Metropolitan Fire District; American Academy of Pediatrics; American Nurses Association, California; California Hospital Association; California Emergency Nurses Association; John Muir Health; Cedars-Sinai Health System; County of Los Angeles; San Diego County Board of Supervisors; City of Los Angeles; City of Sacramento; Alliance of Automobile Manufacturers; Association of California Insurance Companies; AAA of Northern California; Automobile Club of Southern California Opposition:California Attorneys for Criminal Justice; California DUI Lawyers Association; California Public Defenders Association Assembly Floor Vote: Ayes 77 - Noes 0 KEY ISSUE SHOULD THE DEPARTMENT OF MOTOR VEHICLES CREATE A PILOT PROJECT IN THREE COUNTIES MANDATING THE USE OF AN IGNITION INTERLOCK DEVICE BY ALL DRIVING UNDER THE INFLUENCE OFFENDERS? PURPOSE The purpose of this bill is to create a pilot project mandating the installation of an ignition interlock device on the vehicles owned or operated by all driving under the influence offenders in the Counties of Alameda, Los Angeles, and Sacramento. Existing law provides it is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (Vehicle Code 23152(a).) (More) AB 91 (Feuer) PageC Existing law provides that it is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. (Vehicle Code 23152(b).) Existing law provides that a person who is convicted of a first driving under the influence ("DUI") is subject to the following penalties when given probation: possible 48 hours to 6 months in jail; $390 to $1,000 fine plus 250% penalty assessments; completion of a 3-month treatment program or a 9-month program if the BAC was .20% or more; 6-month license suspension or 10-month suspension if 9-month program is ordered; and restricted license may be sought upon proof of enrollment or completion of program, proof of financial responsibility and payment of fees. However, the court may disallow the restricted license. (Vehicle Code 13352 (a)(1); 13352.1; 13352.4; 23538(a)(3).) Existing law provides that a person who is convicted of a first DUI with injury is subject to the following penalties: 16 months, 2 or 3 years in state prison, or 90 days to 1 year in county jail; $390 to $1,000 fine plus 250% penalty assessments; and 1 year driver's license suspension. Or, when probation is given: 5 days to one year in jail; $390 to $1,000 fine plus 250% penalty assessments; 1 year license suspension; 3-month treatment program or a 9-month program if the BAC was .20% or more; and the additional penalties that apply to a first DUI without injury. (Vehicle Code 23554.) Existing law provides that the Department of Motor Vehicles shall advise the person convicted of a second DUI that after completion of 12 months of the suspension period, the person may apply for a restricted license subject to the following (More) AB 91 (Feuer) PageD conditions are met: proof of enrollment in an 18-month or 30-month driving-under- the influence program; person agrees to continued satisfactory participation in the program; person submits proof of installation of an ignition interlock device; person provides proof of insurance; and person pays all fees. (Vehicle Code 13352 (a)(3).) Existing law provides that the Department of Motor Vehicles shall advise the person convicted of a third DUI that after completion of 12 months of the suspension period, the person may apply for a restricted license subject to the following conditions are met: proof of enrollment in an 18 month or 30 month driving-under-the influence program; person agrees to continued satisfactory participation in the program; person submits proof of installation of an ignition interlock device; person provides proof of insurance; and person pays all fees. (Vehicle Code 13352 (a)(5).) Existing law provides that if a first-offender DUI is found to have a blood concentration of .20% BAC or above or who refused to take a chemical test, the court shall refer the offender to participate in a 9-month licensed program. (Vehicle Code 23538 (b)(2).) Existing law provides that a first-time DUI offender sentenced to a 9-month program because of a high BAC or a refusal shall have their license suspended for 10 months. The law further provides that their license may not be reinstated until the person gives proof of insurance and proof of completion of the required program. (Vehicle Code 13352.1.) Existing law provides that a person convicted of a first-time DUI may apply for a restricted license for driving to and from work and to and from a driver-under-influence program if (More) AB 91 (Feuer) PageE specified requirements are met, paying all applicable fees, submitting proof of insurance and proof of participation in a program. (Vehicle Code 13352.4.) This bill provides that the Department of Motor Vehicles ("DMV") shall establish a pilot program in the counties of Alameda, Los Angeles, and Sacramento to reduce the number of first time violations and repeat DUI offenses. This bill provides that DMV, upon receipt of the court's abstract of conviction for one of the specified DUI violations, shall inform the convicted person he or she is required to have an ignition interlock device installed for the specified period of time. This bill provides that the records of DMV shall reflect the mandatory use of the device for the term required and the time with the devices is required to be installed. This bill provides that DMV shall advise the person that installation of an ignition interlock device on a vehicle does not allow the person to drive without a valid driver's license. This bill provides that 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 that requires the installation of an ignition interlock device, a person who is notified by the department shall complete all of the following: Arrange for each vehicle owned or operated by the person to be fitted with an ignition interlock device by a certified ignition interlock device provider. Notify DMV and provide to the department proof of installation by submitting the "Verification of Installation" form. Pay the fee, determined by DMV, which is sufficient to cover the costs of administration of this section. This bill provides that DMV shall place a restriction on the driver's license record of the convicted person that states the driver is restricted to driving only vehicles equipped with a (More) AB 91 (Feuer) PageF certified ignition interlock device. This bill provides that a person who is notified by DMV shall arrange fore each vehicle with an ignition interlock device 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. This bill provides that the installer shall notify the department 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 ignition interlock device. This bill provides that DMV shall monitor the installation and maintenance of the ignition interlock device installed under the pilot project. This bill provides that a person is required to install an ignition interlock device for the applicable term 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 conviction for a violation or suspension of a person's driver's license. This bill provides that a person convicted of a violation of DUI shall be required to install an ignition interlock device as follows: Upon a first offense, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of five moths that begins once that person has provided proof of installation. Upon a second offense, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of 12 months that begins once that person has provided proof of installation. Upon a third offense, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of 24 months that (More) AB 91 (Feuer) PageG begins once that person has provided proof of installation. Upon a fourth or any subsequent violation, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of 36 months that begins once that person has provided proof of installation. This bill provides that upon a conviction for DUI with injury a person shall install an ignition interlock device as follows: Upon a first offense, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of 12 months that begins once that person has provided proof of installation. Upon a second offense, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of 24 months that begins once that person has provided proof of installation. Upon a third offense, the person shall install an ignition interlock device in all vehicles owned or operated by the person for a mandatory term of 36 months that begins once that person has provided proof of installation Upon a fourth offense, or any subsequent violation, the person shall install an ignition interlock device in all vehicles owned or operated by that person for a mandatory term of 48 months that begins once the person has provided proof of installation. This bill provides that a person who is notified by DMV is exempt from the mandatory ignition interlock requirements if within 30 days of the notification, the person certifies to DMV all of the following: The person does not own a vehicle. The person does not have access to a vehicle at his or her residence. The person no longer has access to the vehicle being driven by the person at the time he or she was arrested for the DUI. The person acknowledges that he or she is only allowed to drive a vehicle that is fitted with a functioning ignition interlock device. (More) AB 91 (Feuer) PageH The person acknowledges that he or she is required to have a valid driver's license before he or she can drive. The person is subject to the requirement of this section when he or she purchases or has access to a vehicle. This bill provides that every manufacturer and manufacturer's agent certified by DMV to provided ignition interlock devices shall adopt the following fee schedule that provides for the payment of the costs of the ignition interlock device by offenders subject to this chapter in amounts commensurate with that person's income relative to the federal poverty level, as defined in Health and Safety Code Section 127400: A person with an income at 100% of the federal poverty level and below is responsible for 10 percent of the cost of the ignition interlock device. The ignition inter lock device provider is responsible for absorbing the cost of the ignition interlock device that is not paid by the person. A person with an income at 101 to 200% of the federal poverty level is responsible for 25% of the cost of the ignition interlock device. The ignition interlock device provider is responsible for absorbing the cost of the ignition interlock device that is not paid by the person. A person with an income at 201 to 300% of the federal poverty level is responsible for 50% of the cost of the ignition interlock device. The ignition interlock device provider is responsible for absorbing the cost of the ignition interlock device that is not paid by the person. All other offenders are responsible for 100% of the cost of the ignition interlock device. This bill provides that the cost of the ignition interlock device may only be raised annually equal to the Consumer Price Index. This bill provides that the offender's income may be verified by presentation of that person's current federal income tax return or three months of monthly income statements. This bill provides that for the purposes of this section (More) AB 91 (Feuer) PageI "vehicle" does not include a motorcycle until the state certifies an ignition interlock device that can be installed on a motorcycle. A person subject to an ignition interlock device restriction shall not operate a motorcycle for the duration of the ignition interlock restriction period. This bill requires DMV to receive nonstate funds for the programming costs of the pilot program by January 31, 2010, in order for DMV to implement the program. This bill provides that on or before January 1, 2014, DMV shall report to the Legislature regarding the effectiveness of the pilot program in reducing the number of first-time violations and repeat offenses in the counties of Alameda, Los Angeles, and Sacramento. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION California continues to face a severe prison overcrowding crisis. The Department of Corrections and Rehabilitation (CDCR) currently has about 170,000 inmates under its jurisdiction. Due to a lack of traditional housing space available, the department houses roughly 15,000 inmates in gyms and dayrooms. California's prison population has increased by 125% (an average of 4% annually) over the past 20 years, growing from 76,000 inmates to 171,000 inmates, far outpacing the state's population growth rate for the age cohort with the highest risk of incarceration.<1> In December of 2006 plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population --------------------------- <1> "Between 1987 and 2007, California's population of ages 15 through 44 - the age cohort with the highest risk for incarceration - grew by an average of less than 1% annually, which is a pace much slower than the growth in prison admissions." (2009-2010 Budget Analysis Series, Judicial and Criminal Justice, Legislative Analyst's Office (January 30, 2009).) (More) AB 91 (Feuer) PageJ pursuant to the federal Prison Litigation Reform Act. On February 9, 2009, the three-judge federal court panel issued a tentative ruling that included the following conclusions with respect to overcrowding: No party contests that California's prisons are overcrowded, however measured, and whether considered in comparison to prisons in other states or jails within this state. There are simply too many prisoners for the existing capacity. The Governor, the principal defendant, declared a state of emergency in 2006 because of the "severe overcrowding" in California's prisons, which has caused "substantial risk to the health and safety of the men and women who work inside these prisons and the inmates housed in them." . . . A state appellate court upheld the Governor's proclamation, holding that the evidence supported the existence of conditions of "extreme peril to the safety of persons and property." (citation omitted) The Governor's declaration of the state of emergency remains in effect to this day. . . . the evidence is compelling that there is no relief other than a prisoner release order that will remedy the unconstitutional prison conditions. . . . Although the evidence may be less than perfectly clear, it appears to the Court that in order to alleviate the constitutional violations California's inmate population must be reduced to at most 120% to 145% of design capacity, with some institutions or clinical programs at or below 100%. We caution the parties, however, that these are not firm figures and that the Court reserves the right - until its final ruling - to determine that a higher or lower figure is appropriate in general or in particular types of facilities. (More) AB 91 (Feuer) PageK . . . Under the PLRA, any prisoner release order that we issue will be narrowly drawn, extend no further than necessary to correct the violation of constitutional rights, and be the least intrusive means necessary to correct the violation of those rights. For this reason, it is our present intention to adopt an order requiring the State to develop a plan to reduce the prison population to 120% or 145% of the prison's design capacity (or somewhere in between) within a period of two or three years.<2> The final outcome of the panel's tentative decision, as well as any appeal that may be in response to the panel's final decision, is unknown at the time of this writing. This bill does not appear to aggravate the prison overcrowding crisis outlined above. COMMENTS 1. Need for This Bill 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. ----------------------- <2> Three Judge Court Tentative Ruling, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (Feb. 9, 2009). (More) AB 91 (Feuer) PageL Interlock ignition devices (IIDs) have uniformly demonstrated, when utilized 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. Under current law, the courts have the discretion, but are not mandated, to require the installation of an IID for first-time and repeat DUI offenders. Data shows that, statewide, only 4.3 percent of DUI offenders are actually ordered to install an IID. 2. Mandatory IID Pilot Project a. Applies to all offenders. This bill requires DMV to create a pilot project in three counties. A person convicted of a DUI or DUI with injury will be required under the pilot project to install an ignition interlock device (IID) on any vehicles he or she owns or has access to. This bill applies to all levels of offenders. Currently all DUI offenders face high fines, suspended license sanctions and mandatory DUI programs before having a license reinstated. An IID will be an additional cost on all the offenders. While DUI arrest numbers may be up, the rate of DUI offenses, while fluctuating slightly year to year, remains significantly lower than it was in the early 1990s before the attendance at the DUI (More) AB 91 (Feuer) PageM programs was mandated in 1994. For example, according to the DMV's 2009 Annual Report of the California DUI Management Information System<3> "the DUI arrest rate per 100 licensed drivers was 0.9 in 2007, up from 0.8 in 2000-2006. This represents a 50% reduction from the 1.8 rate in 1990." Furthermore, "after 5 years, the proportion of DUI offenders reoffending in the 1994 group was much lower (18%) compared to the proportion reoffending in the 1984 group (27%) and in the 1980 group (35%). The 2000 group of DUI offenders had the lowest proportion of reoffenses (17%)." The addition of the program sanction in 1994 seemed to have a significant effect on the recidivism rate of all offenders. DMV's 2005 report on interlock in California<4> had among its recommendations that California should deemphasize the use of IID for first offenders. Specifically it recommended: 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 to 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, 1988). 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 ---------------------- <3> http://www.dmv.ca.gov/about/profile/rd/2009_DUI_MIS_Report_with_% 20Eratta_1-2.pdf <4> http://www.dmv.ca.gov/about/profile/rd/r_d_report/Section%205/217 _ignition_interlock_technical_report.pdf (More) AB 91 (Feuer) PageN California Vehicle Code (CVC) Section 23575 (a)(1). It is it appropriate to mandate IID on all offenders? If so, are there any negative implications, such as will the added cost cause more people to "drop out," not participate in the program or do the other things needed to get a valid license reinstated. The recidivism rates have been down since the programs were mandated; for example, "the 1-year recidivism rates for all first offenders in 2006 continued to remain at the lower level of the past eight years. The DUI reoffense rate for first offenders arrested in 2006 was 40.8% lower than the reoffense rate for first offenders arrested in 1990" (2009 Annual Report of the California DUI Management Information System). Would it be more appropriate to see what impact on recidivism the IID mandate has on repeat offenders before mandating them on first offenders? SHOULD THE PILOT PROJECT MANDATE IID ON ALL OFFENDERS? b. Length of interlock requirement. The length for which an offender will have to have installed the mandated IID will depend on the offense as follows: First offense-5 months. First offense with injury-12 months. Second offense-12 months. Second offense with injury- 24 months. Third offense-24months. Third offense with injury-36months. Fourth or subsequent offense-36 months. Fourth or subsequent offense with injury-48 months. The term begins once a person has provided proof of installation. Should the time start from the date of installation? Since a person cannot drive until the license is reinstated with the IID restriction, it is possible that a person could have the IID installed and then have a delay of a few days or even a week before he or she can get someone else to take them to DMV to submit the proof of installation. Shouldn't their time start running from the date the IID was installed (More) AB 91 (Feuer) PageO which should be indicated on the proof of installation sheet? SHOULD THE TIME FOR THE IID START ON INSTALLATION? c. Counties in the pilot. This bill creates the pilot in three urban counties, Alameda, Los Angeles, and Sacramento. These are counties with high DUI numbers because of their sizes but do not necessarily have highest DUI rates. While DUI arrests generally have been going down, the 2009 Annual Report indicated that Hispanics again represented the largest ethnic group among arrestees as they have every year since 1992. Their arrest rate continues to be "substantially higher than their estimated 2007 population parity" rate. Furthermore, "in some counties where the population of Hispanics is high, the DUI arrest rate is also high. For example, in the following eight counties, Hispanics comprised 60% or more of those arrested for DUI during 2007: Tulare (76.6%), San Benito (70.2%), Imperial (69.5%), Merced (67.4%), Monterey (67.0%), Fresno (66.8%), Madera (63.2%), and Kings (61.2%). However, in most other counties, the majority of arrestees were White." (id., DMV 2009 Report at p. 7) Would it be appropriate to substitute one of these more rural counties for one of the urban counties currently in the bill? Kings, Merced, Monterey, San Benito and Tulare Counties have higher DUI conviction rates than Alameda or Los Angeles and most have higher rates than Sacramento. Wouldn't a study that included one of these counties with a higher population of Hispanics with a high rate of arrest give us a better understanding of any impact a statewide mandate on IID would have? SHOULD A RURAL COUNTY BE SUBSTITUTED FOR ONE OF THE URBAN COUNTIES? d. Owns or has access to. This bill provides that a person must install an IID on any vehicle that the person owns or operates. However, in order to be exempted from the requirements, it states the person must certify to DMV that the person does not have access to a vehicle (More) AB 91 (Feuer) PageP at his or her residence. It is unclear what "access to" means. Does a person have access to a vehicle if his or her roommate has a car that he or she does not have the right to drive and has never driven? What if a person lives with a family member who has a car but does not have the DUI defendant on his or her insurance? What if the person has occasionally in the past borrowed a neighbor's car to do an errand for a neighbor? Is that considered access to? Is the standard that a person has access to a vehicle a higher standard than the requirement that the person put an IID on any car he or she owns or operates? Should this language be clarified to be consistent? WHAT DOES HAVE "ACCESS TO" MEAN? IS IT THE SAME AS OWNS OR OPERATES? 3. Study This bill requires DMV to report to the Legislature regarding the effectiveness of the pilot project in reducing the number of first-time violations and repeat offenses in the specified counties. One of the issues with any study on an IID is when the IIDs are not assigned randomly. It is not possible to have a true comparison group. A more scientific way to conduct a study would be to have DMV randomly assign the mandated IID to individuals within the counties in the study, perhaps by the last number in their driver's license or some other random method. In the alternative, maybe this bill should specifically state that this study should compare the counties in the pilot with counties that currently have a similar rate of DUI convictions. Since the counties in the study do not currently have the highest rates, a comparison to other counties that currently have higher rates might not lead to accurate results. It might also be useful to compare a county which mandates the IID to a county in which offenders can elect to install an IID as allowed under SB 598 (Huff). This would be a good way to compare what the most effective use of an IID as a sanction would be. (See Comment 6 below.) The study in this bill is required to be filed on January 14, 2014. The section itself does not become effective until July (More) AB 91 (Feuer) PageQ 1, 2010, so this would give DMV less than 4 years to conduct the study. Realistically, in order to have time to do the study, the time frame studied would be about 3 years. This will not give DMV any real information on how an IID mandate will impact recidivism if many of those mandated to have the IID will still have the IID on his or her vehicle when the data is collected. The study due date and the sunset date should be extended to give DMV at least four or preferably five years of data on the mandated offenders. SHOULD THE STUDY PROVIDE THAT DMV RANDOMLY ASSIGN THE IID MANDATE WITHIN THE COUNTY TO GET A TRUE CONTROL GROUP? SHOULD THE STUDY COMPARE THE COUNTIES IN THE PILOT WITH COUNTIES THAT CURRENTLY HAVE A SIMILAR ARREST AND CONVICTION RATE THAT WILL NOT HAVE THE MANDATED IID? SHOULD THE DATE THE REPORT IS DUE BE EXTENDED SO THAT THE DMV HAS AT LEAST FOUR OR MORE YEARS OF DATA TO STUDY? 4. Ability to Pay This bill provides that a person who makes less than 301% of the poverty level only needs to pay a portion of the cost of the IID. The federal poverty level is $10,830 for a single person and 22,050 for a family of four. A person who makes this amount would only need to pay 10% of the cost of the IID. A single person who made up to 200% of the poverty level or $21,660 or a person who is the head of household for a family of four who made $44,100 would have to pay 25% of the cost of the IID. Finally a single person who made up to 300% of the poverty level or $32,490 or a head of household of a family of four who makes $66,150 must pay up to 50% of the cost of the IID. A person who makes a dollar more than that is responsible for 100% of the IID fees. In general, the fines, fees and cost associated with a DUI are approximately $6,000-$10,000 without an attorney and without any additional insurance costs. Any IID fees will be in addition to these existing fees. Is the poverty level a realistic amount for determining who can and cannot afford to pay for an IID? (More) AB 91 (Feuer) PageR The California Association of Ignition Interlock Service Professionals object to the mandated reduction of fees under this bill. They argue that such mandated reduction does not occur in other states where IIDs are mandated nor does it occur elsewhere in the law. They argue that the state: [S]hould either look to a State-managed assistance fund ? or leave well enough alone related to fees for IID services; trusting that, as they have for the better part of the past 20years , required users will find a way to afford the IID by reduction or elimination of alcohol consumption and/or other deleterious habits. What California should NOT do, is require such assistance be provided by IID manufacturers and service providers at the levels required by this legislation, which will surely result in fewer IID manufacturers and service providers offering their services in the respective counties in the pilot program, or the State entirely; as the cost of doing business (above what it is already) will be too excessive for many current IID service providers to offer this service profitably. (emphasis in original) (More) While the fee schedule is not set in code like the one in this bill, Health and Safety Code Section 11837.4 (b)(2)(A) with regard to the mandated licensed drinking driver treatment programs does provide that the fees for the programs be approved by the Department of Alcohol and Drug programs and that a person's ability to pay must be considered. Specifically it provides: The department [of Alcohol and Drug Programs] shall approve all fee schedules for the programs and shall require that each program be self-supporting from the participants' fees and that each program provide for the payment of the costs of the program by participants at times and in amounts commensurate with their ability to pay in order to enable these persons to participate. Each program shall make provisions for persons who can successfully document current inability to pay the fees. Only the department may establish the criteria and procedures for determining a participant's ability to pay. The department shall ensure that the fees are set at amounts that will enable programs to provide adequately for the immediate and long-term continuation of services required pursuant to this chapter. The fees shall be used only for the purposes set forth in this chapter, except that any profit or surplus that does not exceed the maximum level established by the department may be utilized for any purposes allowable under any other provisions of law. In its regulations, the department shall define, for the purposes of this paragraph, taking into account prudent accounting, management, and business practices and procedures, the terms "profits" and "surplus." The department shall fairly construe these provisions so as not to jeopardize fiscal integrity of the programs. The department may not license any program if the department finds that any element of the administration of the program does not assure the fiscal integrity of the program. IS THE POVERTY LEVEL THE REALISTIC MARKER FOR WHAT A PERSON CAN (More) AB 91 (Feuer) PageT AFFORD TO PAY FOR AN IID? WILL THE MANDATED SUBSIDIES BY THE IID INDUSTRY RESULT IN FEWER PROVIDERS AVAILABLE IN THE STATE? 5. Non-state Funds This bill provides that DMV shall not implement this bill if by January 31, 2010, DMV fails to obtain non-state funds for the programming costs of the pilot program. The term non-state funds would allow this pilot to be funded not only by Federal funds that may be available, but also funds supplied by the IID industry or advocacy groups. Is it appropriate to fund a state mandated pilot project in this way, or should the funding be limited to funds from Federal or other non-state grants? WILL THE TERM NON-STATE FUNDS ALLOW A FUNDING OF THE PILOT BY INDUSTRY OR INTERESTED ADVOCACY GROUPS? 6. SB 598 (Huff) On May 4, 2009, this Committee heard and passed SB 598 (Huff) with Benoit, Leno and Hancock added as co-authors. It provides that a person who has a 2nd or subsequent DUI may get a restricted license earlier than the law currently allows, if he or she shows proof of installation of an IID. This bill is consistent with one of the recommendations in the DMV's 2005 Report on Interlock in California which stated: The results of this study show that second DUI offenders who serve half of their suspension period, and install an IID in order to obtain a restricted driver license, have a lower risk of DUI recidivism than 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 AB 91 (Feuer) PageU effective for repeat DUI offenders. While SB 598 takes a different approach than this bill, because this bill is a pilot project, both bills could take effect. Because this bill is more specific as to specified counties, it takes precedence in those counties once DMV established the pilot projects. As noted above, it would also be appropriate to require the study in this bill to compare a county in which the IID are mandated to similar counties in which the SB 598 is in effect. Perhaps, language should be taken to make this bill contingent on the passing of SB 598 in order to assure that both bills take effect and a determination can be made as to whether the mandate approach or the opt-in approach leads to better results. ***************