BILL ANALYSIS Ó
AB 1389
Page 1
Date of Hearing: May 2, 2011
ASSEMBLY COMMITTEE ON TRANSPORTATION
Bonnie Lowenthal, Chair
AB 1389 (Allen) - As Amended: March 31, 2011
SUBJECT : Sobriety checkpoints
SUMMARY : Sets standards for the establishment and operation of
sobriety checkpoints. Specifically, this bill :
1)Allows the California Highway Patrol (CHP), cities, and
counties to establish, on highways, roads, or streets under
their respective jurisdictions, a sobriety checkpoint program
to identify drivers whose blood alcohol content (BAC) exceeds
allowable limits or who are driving under the influence of
alcohol (DUI).
2)Requires such a program to be conducted by the local
governmental agency or department with the primary
responsibility for traffic law enforcement.
3)Requires supervisory law enforcement personnel to select the
site of the checkpoint and to determine the procedures for a
checkpoint operation, but not limited to, time and location.
4)Requires the law enforcement agency conducting the checkpoint
to employ a neutral methodology for determining which vehicles
to stop at the checkpoint or, alternatively, to stop all
vehicles that drive through the checkpoint.
5)Requires the law enforcement agency to ensure that there are
proper lighting, warning signs and signals, clearly
identifiable official vehicles, and uniformed personnel to
minimize the risk to motorists and their passengers and to
operate a checkpoint only when traffic volume allows for the
safe operation of the program.
6)Requires the location of the checkpoint to be based on a
location that has a high incidence of DUI arrests or a high
volume of DUI-related accidents, as determined by supervisory
officers of the law enforcement agency conducting the sobriety
checkpoint.
7)Requires the law enforcement agency to conduct the checkpoint
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after dusk or at a time and for a duration that are reasonable
and effective to the objective of deterring DUI offenses.
8)Requires a driver who elects to drive through the checkpoint
to stop and submit to an inspection when signs and displays
are posted requiring that stop.
9)Prohibits a peace officer or any other authorized person from
causing the impoundment of a vehicle at a sobriety checkpoint
established under these provisions or any other law, unless
the driver of the vehicle is suspected of driving with a
suspended or revoked license, being a habitual traffic
offender, driving with a license that has been suspended or
revoked for a DUI offense, driving under the age of 21 with a
BAC of .05 or higher, driving under the influence of drugs or
alcohol, in a vehicle subject to impoundment for fleeing a
peace officer, in a vehicle that was probably used as the
means of committing a public offense, other than driving
without a license or use of one's vehicle by an unlicensed
driver, in a vehicle that itself is probably evidence that
tends to show that a crime has been committed or that probably
contains evidence that cannot readily be removed that tends to
show that a crime has been committed, other than driving
without a license or use of one's vehicle by an unlicensed
driver.
10)Prohibits the impoundment of a vehicle due to the driver not
having a valid driver's license if the driver is able to
obtain a validly licensed driver to drive the vehicle, the
driver is able to park or remove the vehicle in a manner that
does not impede traffic or threaten public safety until a
validly licensed driver can retrieve the vehicle, or a peace
officer, or a similarly authorized traffic enforcement
officer, is able to readily and lawfully remove the vehicle to
a place that does not impede traffic or threaten public
safety.
11)Precludes a state or local governmental agency that
establishes or conducts a checkpoint under these provisions
from being liable for any claims related to the parking or
removal of the vehicle.
12)Requires a law enforcement agency that conducts a sobriety
checkpoint program to provide advance notice of the checkpoint
location to the public within a minimum of 48 hours of the
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checkpoint operation.
13)Prohibits a driver who does not wish to submit to the
checkpoint from being compelled to drive through the
checkpoint.
14)Requires the law enforcement agency conducting the checkpoint
to post signs announcing the checkpoint sufficiently in
advance of the location of the checkpoint to permit motorists
to not enter the location and requires such an agency to
ensure that there is a clear and safe way to turn away from
the checkpoint for those motorists who choose not to drive
through the checkpoint.
15)Prohibits the law enforcement agency from stopping a motorist
that chooses to avoid the checkpoint.
16)Prohibits law enforcement agencies from conducing combined
sobriety checkpoint and vehicle inspection programs.
EXISTING LAW :
1)Allows a peace officer who determines that a person was
driving a vehicle without ever having been issued a driver's
license, to either immediately arrest that person and cause
the removal and seizure of that vehicle or, if the vehicle is
involved in a traffic collision, cause the removal and seizure
of the vehicle without the necessity of arresting the person.
2)Provides that such an impoundment will be for 30 days.
3)Allows counties, by ordinance, to establish on highways under
their respective jurisdictions, a combined vehicle inspection
and sobriety checkpoint program to check for violations of
vehicle exhaust standards and to identify drivers who are
driving under the influence of alcohol or drugs or are persons
under 21 driving with a BAC of .05 or more.
4)Requires such a program to be conducted by the local agency or
department with the primary responsibility for traffic law
enforcement.
5)Requires the driver of a motor vehicle to stop and submit to
an inspection conducted under these provisions when signs and
displays are posted requiring that stop.
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FISCAL EFFECT : Unknown
COMMENTS : Proponents of this bill contend that in recent years,
sobriety checkpoints have increasingly targeted unlicensed
drivers whose cars may then be impounded. (These impoundments
are typically for a term of 30 days, which can effectively
result in the forfeiture of the car, since towing and
impoundment fees may well exceed the value of the vehicle.) In
2009, they complain, police impounded more than 24,000 vehicles
at checkpoints, roughly seven times higher than the 3,200 drunk
driving arrests at roadway operations. Some agencies, in fact,
tow as many as 20 vehicles of unlicensed drivers for each DUI
arrest made, according to a 2010 report by the Investigative
Reporting Program at UC Berkeley. The percentage of vehicle
seizures in these roadway operations has increased 53% statewide
compared to 2007.
Proponents further assert that "sobriety checkpoints are set up
in areas that do not have a high correlation of DUI arrests or
accidents, and target certain neighborhoods or locations where
high populations of low-income families or other low-income
communities. In one Northern California community that is
predominantly Latino, DUI checkpoints have resulted in 121
impounded cars compared to just 4 DUI arrests in a 2-year
period."
The California Supreme Court in 1987 rendered a decision on the
premiere California roadblock case, Ingersoll v. Palmer. This
decision set the standard for how law enforcement agencies must
conduct roadblocks sobriety checkpoints. The Supreme Court
identified a number of factors for minimizing intrusiveness on
the individual while balancing the needs of society in keeping
drunk drivers off the road: decision-making at the supervisory
level, limits on the discretion of field officers, maintenance
of safety conditions, reasonable location, time and duration,
visibility of the roadblock, length and nature of detention, and
advance publicity. Furthermore, in the case of Miranda v. City
of Cornelius, the 9th Circuit Court of Appeals held in 2005 that
a car that can be safely parked by a licensed driver may not be
impounded under the "community caretaker provision." This bill
seeks to codify the standards established by those decisions.
Immigrants' rights groups contend that law enforcement agencies
often conduct checkpoints in broad daylight or in locations
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unrelated to patterns of drunk driving, "which demonstrates the
need for statewide uniformity and the need for specific
guidelines to make the checkpoints as effective as possible in
order to enhance public safety for all Californians. Even when
there are safe and reasonable alternatives, authorities are also
impounding cars of unlicensed drivers at checkpoints and leaving
people on the street, in some cases with small children, to find
their way home. AB 1389 will enhance community-policing efforts
on the ground by providing both law enforcement agencies and the
communities they serve clear guidance and expectations on
checkpoints."
The California Highway Patrol (CHP) does not believe that this
bill's impoundment provisions are entirely consistent with CHP
policy and practice in this area. They note, for instance, that
they don't always have sufficient staff present at a checkpoint
to move a vehicle to a safe location as well as to assure that
the person who eventually retrieves it is properly licensed.
The author has committed to work with the CHP to address any
such inconsistencies.
Author's amendments : The author is offering amendments that
would: 1) Require each motorist at a checkpoint to be detained
so that the officer may briefly question the driver and look for
signs of intoxication, and then permit him or her to drive on if
no such signs are displayed, 2) Require the law enforcement
agency to provide at least 48 hours advance notice to the public
of the checkpoint location, 3) Require the time of day and
duration of checkpoints to be carefully reviewed and the
effectiveness, safety, and motorists' concerns to be to be taken
into account, and 4) Delete provisions from the bill that would
have prohibited law enforcement agencies from compelling
unwilling drivers to drive through checkpoints.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union, Berkeley/North East Bay Chapter
Asian Law Caucus
Asian Pacific American Legal Center
Associated Chaffey Teachers
Coalicion Por La Jusicia, Paz Y Dignidad
California Immigrant Policy Center
City of Coachella
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Greater Long Beach Interfaith Community Organization
International Institute of the Bay Area
Just Cause
Legal Services for Prisoners with Children
Los Amigos of Orange County
National Network for Immigrant and Refugee Rights
North Bay Sponsoring Committee
People Improving Communities Through Organization
Pomona Habla/Speaks Community Coalition
PUEBLO
San Bernardino Community Service Center
SEIU - United Service Workers West
Sumac Services
Unified Translation Services
Watts/Century Latino Organization
Letters from two individuals
Opposition
None received
Analysis Prepared by : Howard Posner / TRANS. / (916) 319-2093