BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 154 (Benoit) 4
As Introduced February 12, 2009
Hearing date: April 14, 2009
Harbors and Navigation Code; Vehicle Code
MK:mc
VESSELS: OPERATION OF VESSEL
HISTORY
Source: Author
Prior Legislation: AB 2073 (Benoit) - 2008, held in Assembly
Appropriations
SB 1694 (Torlakson) - Chapter 550, Statutes of 2004
SB 1697 (Torlakson) - Chapter 551, Statutes of 2004
Support: California Boating Safety Officers Association; MADD
California; MADD (national); California State Sheriffs'
Association; California District Attorneys Association;
California Association of Harbor Masters and Port
Captains; California Marine Parks and Harbors
Association; California Yacht Brokers Association;
Marina Recreation Association; Northern California
Marine Association; the Western Boaters Safety Group
Opposition:California Attorneys for Criminal Justice; California
DUI Lawyers; Taxpayers for Improving Public Safety
KEY ISSUES
SHOULD A BOATING UNDER THE INFLUENCE CONVICTION ACT AS A PRIOR
FOR 10 YEARS?
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SHOULD A PERSON CONVICTED OF BOATING UNDER THE INFLUENCE (BUI)
BE REQUIRED TO ATTEND THE SAME TREATMENT PROGRAMS AS A PERSON
CONVICTED OF DRIVING UNDER THE INFLUENCE?
(CONTINUED)
SHOULD A PERSON CONVICTED OF BOATING UNDER THE INFLUENCE HAVE HIS OR
HER DRIVING PRIVILEGE SUSPENDED OR REVOKED IN THE SAME MANNER AS A
PERSON CONVICTED OF DRIVING UNDER THE INFLUENCE?
SHOULD, IN A BUI CASE, THE ABILITY OF THE COURT TO STRIKE A PRIOR
DUI, BUI, OR VEHICULAR MANSLAUGHTER IN THE INTEREST OF JUSTICE BE
REMOVED?
PURPOSE
The purpose of this bill is to make changes to provisions of law
relating to boating under the influence to conform the treatment
and license suspension requirements to those of driving under
the influence.
Existing law provides that a person who is convicted of a first
driving under the influence ("DUI") offense 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 a
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
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13352 (a)(1), 13352.1, 13352.4, 23538(a)(3).)
Existing law provides that no person shall operate any vessel or
manipulate water skis, an aquaplane, or a similar device while
under the influence of an alcoholic beverage and any drug.
(Harbors and Navigation Code 655 (b).)
Existing law provides that no person shall operate any
recreational vessel or manipulate any water skis, aquaplane, or
similar device if the person has an alcohol concentration of
0.08 percent or more in his or her blood. (Harbors and
Navigation Code 655 (c).)
Existing law provides that no person shall operate any vessel
other than a recreational vessel if the person has an alcohol
concentration of 0.04 percent or more in his or her blood.
(Harbors and Navigation Code 655 (d).)
Existing law provides that no person shall operate any vessel,
or manipulate water skis, an aquaplane, or similar device, who
is addicted to the use of any drug. (Harbors and Navigation
Code 655 (e).)
Existing law provides that a person convicted of a first
violation of boating under the influence ("BUI") shall be
punished by a fine of not more than $1,000 or imprisonment in
the county jail for not more than six months, or by both that
fine and imprisonment. If probation is granted, the court, as a
condition of probation, may require the person to participate in
and successfully complete a licensed drinking driver treatment
program. (Harbors and Navigation Code 668 (c).)
This bill provides that if a person is convicted of a first
violation of BUI, if probation is granted, the court shall
impose, as a condition of probation, a requirement that the
person participate in and successfully complete a licensed
alcohol or drug recovery services program in conformance with
Section 23538 of the Vehicle Code.
Existing law provides that a person convicted of a second or
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subsequent violation of BUI or DUI shall be punished by a fine
of not more than $1,000 or imprisonment in the county jail for
not more than one year or by both that fine and imprisonment.
If probation is granted, the court may require a person to do
either of the following, if available in the county of the
person's residence or employment: an 18 month or 30 month
alcohol and drug treatment program. (Harbors and Navigation
Code 668 (f).)
This bill mandates that the court order the alcohol and drug
treatment program when a person is convicted of a second or
subsequent BUI or DUI within 10 years.
Existing law provides that no person shall operate any vessel,
or manipulate water skis, an aquaplane, or a similar device
while under the influence of an alcoholic beverage, any drug or
under the combined influence of an alcoholic beverage and any
drug, and while so operating, do any act forbidden by law, or
neglect any duty imposed by law in the use of the vessel, water
skis, aquaplane, or similar device, which act or neglect
proximately causes bodily injury to any person other than
himself or herself. (Harbors and Navigation Code 655(f).)
Existing law provides that a person convicted of BUI and causing
great bodily injury is guilty of a wobbler with a fine of
$250-$5,000. If probation is granted, the court, as a condition
of probation, may require a person to participate in and
successfully complete a licensed drinking-driver treatment
program. (Harbors and Navigation Code 668 (g).)
This bill provides that when a person is granted probation for a
first conviction of BUI and causing great bodily injury, the
court shall impose a requirement that a person participate in,
and successfully complete, a licensed alcohol and drug recovery
services program in conformance with Section 23556 of the
Vehicle Code.
Existing law states that if a person is convicted of BUI within
seven years of a separate conviction of BUI and is granted
probation, the court shall impose as a condition of probation
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that the person be confined in the county jail for not less than
five days or more than one year and pay a fine of not less than
$250 or more than $5,000. (Harbors and Navigation Code
668(h)(1).)
This bill provides that in addition to the above sanctions for a
repeat offense, the court shall impose as a condition of
probation a requirement that the person participate in and
successfully complete an 18 month or 30 month licensed alcohol
and drug recovery services program.
Existing law provides that if a person is convicted of a
violation of BUI within seven years of a BUI with injury, gross
vehicular manslaughter while intoxicated, vehicular manslaughter
committed during operation of a vessel, or DUI and the defendant
is granted probation, the court shall impose as a condition of
probation that the person be confined in the county jail for not
less than 90 days or more than one year and pay a fine of not
less than $250 or more than $5,000; and the court, as a
condition of probation, may order that the person participate in
a manner satisfactory to the court, in a program licensed, as
specified, if available in the county of the person's residence
or employment. (Harbors and Navigation Code 668(h)(2).)
This bill provides that if a person is convicted of a BUI within
10 years of a BUI with injury, gross vehicular manslaughter
while intoxicated, vehicular manslaughter during the operation
of a vehicle or DUI, the court shall order a person to
participate and successfully complete a licensed alcohol and
drug recovery services program.
This bill provides instead that the increased sanctions shall
apply if a person is convicted of a BUI offense within 10 years
of a prior BUI, gross vehicular manslaughter while intoxicated,
or DUI offense.
Existing law specifies that the court shall not absolve a person
who is convicted of a violation of subdivision BUI within seven
years of a separate BUI conviction, vehicular manslaughter
committed during operation of a vessel, or DUI, when the
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separate conviction resulted from the operation of a motor
vehicle, from the minimum time in confinement provided in this
section, and a fine of at least $250. (Harbors and Navigation
Code 668(i).)
Existing law provides that except in unusual cases where the
interests of justice demand an exception, the court shall not
strike a separate conviction of specified BUI or DUI related
offenses. (Harbors and Navigations Code 688 (j).)
This bill provides that the court shall not strike these
offenses.
Existing law provides that a conviction for BUI, BUI with
injury, gross vehicular manslaughter while intoxicated, or
vehicular manslaughter with a vessel act as a separate offense
for a violation of DUI or DUI causing injury for the purpose of
determining a prior for sentencing for a current DUI conviction.
(Vehicle Code 23620.)
This bill provides that a conviction for BUI, BUI with injury,
gross vehicular manslaughter while intoxicated, or vehicular
manslaughter with a vessel act as a separate offense for a
violation of DUI or DUI causing injury for the purpose of
determining a prior for sentencing for a current DUI conviction
and shall result in a suspension or revocation of the person's
driving privilege.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
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 percent (an
average of 4 percent 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
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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
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
----------------------
<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 percent
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).)
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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.
. . .
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 appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
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<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).
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1. Need for This Bill
According to the author:
According to the California Department of Boating and
Waterways, 25% of all deaths on California waterways are
attributed to boat operators who were under the influence of
alcohol.
Since the mid 1990s the DMV operated under the assumption that
they had the statutory authority needed to suspend the
driver's licenses of individuals who had been boating under
the influence. Basically, the DMV treated BUI cases similar
to driving under the influence cases which in the California
Vehicle code call for the suspension of a person's driving
privileges.
In 2008, the California Court of Appeals ordered an end to
this process. The court's argument for halting this process
was based solely on the fact that DMV lacked explicit
statutory authority.
The same reckless mindset is at work when intoxicated
individuals take either the wheel of the car or control of a
watercraft. SB 154 reflects the seriousness of BUI offenses,
protecting the safety of travelers on California's streets,
highways, and waterways.
2. Time for Which a Prior Acts as a Prior
As of January 1, 2005, existing law provides that a DUI prior
acts as a prior for the purposes of an enhanced sentence for10
years. However, a prior BUI only acts as a prior for 7 years.
This bill changes the time for a prior to act as a prior for
purposes of sentencing a BUI to 10 years to conform to the time
frame for a DUI.
Because this bill extends the time for which a BUI offense can
be used as a prior, it expands who might be eligible for a
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felony and thus may aggravate the Receiver/Overcrowding Prison
Crisis. However, if this change were removed, this bill would
not violate the ROCA policy.
SHOULD THIS BILL BE AMENDED TO REMOVE THE 7 TO 10 YEAR EXTENSION
AND THUS REMOVE THE ROCA ISSUE?
3. Program Mandated as a Condition of Probation
A person who receives probation for a DUI is required to
participate in the appropriate licensed driving-under-the
influence program. The program required is either a 3-month or
9-month program for a first offense and an 18-month or 30-month
program for a second or subsequent offense.
Existing law provides that if a person convicted of BUI is
granted probation, the court may require a person to participate
in and successfully complete an alcohol or drug education,
training, or treatment program. This bill would require a
person convicted of a BUI to participate in the type of program
that is required for a similar DUI. Thus, a person convicted of
a first-time BUI would be required to participate in and
complete a 3-month licensed program and if his or her blood
alcohol level was over .20, then he or she will be required to
attend a 9-month program. A person convicted of a repeat BUI,
or a BUI with a prior DUI, would be required to attend an
18-month program.
The language in these provisions should be amended so the
description of the program matches the description in the
relevant Vehicle Code sections. Instead of reading "a licensed
alcohol or drug recovery services program in conformance with"
the language should state "a driving-under-the influence program
licensed pursuant to Section 11836 of the Health and Safety Code
described in (the appropriate Vehicle Code Section)."
CACJ and the California DUI Lawyers Association (CDLA) oppose
this section because it removes the judge's discretion to
require the program only in appropriate cases:
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In essence, the practical effect of your measure is to
impose a referral to an alcohol program where a judge
has determined it is unwarranted. We are unaware of any
studies indicating judges are improperly exercising
their authority. The courtroom experience of our
members indicates that judges are more than willing to
impose an alcohol program requirement in appropriate
cases. Therefore, eliminating judicial discretion is
unwarranted.
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SHOULD A PERSON CONVICTED OF A BUI BE REQUIRED TO ATTEND THE
SAME DRIVING-UNDER-THE- INFLUENCE PROGRAM THAT A PERSON
CONVICTED OF A DUI MUST ATTEND?
IS IT APPROPRIATE TO REMOVE THE JUDGE'S DISCRETION TO DETERMINE
WHETHER A PERSON SHOULD BE REQUIRED TO ATTEND A TREATMENT
PROGRAM?
4. Mandatory License Suspension
If a person is convicted of a DUI, their driving privilege is
suspended by DMV through an administrative process. Until
recently, DMV believed they had the authority to also suspend
the driving privilege of a person convicted of a BUI under
Vehicle Code Section 23620. However, when a person sought an
injunction questioning the DMV's authority, the court granted
the injunction believing that the plaintiff would prevail
because DMV lacked the authority to suspend or revoke the
driving privilege of a person convicted of a BUI. On appeal,
the court upheld the injunction and found that state law does
not authorize DMV to automatically suspend the driver's license
of an individual convicted of BUI. In fact the court suggested
that:
[T]he answer is to introduce legislation such as that
drafted by the DMV in 2004, which would plainly give the
DMV the authority to suspend driver's licenses for
individuals convicted of BUI. (Cinquegrani v. DMV 163
Cal. App. 4th 741, 850.)
This bill amends Vehicle Code Section 23620 to provided that a
violation of a BUI shall result in the immediate suspension or
revocation of the person's driving privilege. In the
Cinquegrani case, the DMV argued that the license suspension for
a BUI is appropriate because a person who is likely to be BUI is
also likely to drive after drinking. The court noted that the
plaintiffs in that case both had histories of DUI convictions.
MADD believes that this bill is:
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[A] common sense measure aimed at deterring Californians
from boating under the influence. Studies show that
suspension of a driver's license has a deterrent effect
to drinking and driving. Suspension of a driver's
license as a consequence for BUI will likely similarly
deter persons from drinking and then boating.
On the other hand, CACJ and CDLA oppose this bill's efforts to
treat a prior BUI conviction as if it is a prior DUI conviction.
They state:
A BUI should not serve as a base offense for subsequent
DUIs. First, the State of California does not treat
boating the same as operating a motor vehicle. You must
obtain a driver's license to operate a motor vehicle but
no license is required for boating. In fact, you may
lawfully operate a boat as young as 13 under specified
circumstances. California lacks an extensive regulatory
scheme for boating as is currently in place for motor
vehicle, signaling a recognition that the activities are
vastly different. SB 154 treats them the same without
corresponding State regulatory authority.
SHOULD THE LAW BE CLARIFIED TO ALLOW DMV TO SUSPEND THE LICENSE
OF A PERSON CONVICTED OF A BUI?
IS IT APPROPRIATE TO USE A BUI AS A PRIOR FOR A DUI?
5. Removal of Court's Authority to Strike Priors in the
Interest of Justice
Existing law provides that when a person is charged with a BUI,
except in unusual cases where the interests of justice demand an
exception, the court shall not strike a separate conviction of a
BUI, DUI, or vehicular manslaughter offense. This bill removes
the ability of the court to strike priors in any circumstance.
SHOULD, IN A BUI CASE, THE ABILITY OF THE COURT TO STRIKE A
PRIOR DUI, BUI, OR VEHICULAR MANSLAUGHTER IN THE INTEREST OF
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JUSTICE BE REMOVED?
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