BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1389
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          ASSEMBLY THIRD READING
          AB 1389 (Allen)
          As Amended  May 19, 2011
          Majority vote 

           TRANSPORTATION      11-3        APPROPRIATIONS      12-5        
           
           ----------------------------------------------------------------- 
          |Ayes:|Bonnie Lowenthal,         |Ayes:|Fuentes, Blumenfield,     |
          |     |Blumenfield, Bonilla,     |     |Bradford, Charles         |
          |     |Buchanan, Eng, Furutani,  |     |Calderon Campos, Davis,   |
          |     |Galgiani, Logue, Norby,   |     |Gatto, Hall, Hill, Lara,  |
          |     |Portantino, Solorio       |     |Mitchell, Solorio         |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Jeffries, Achadjian,      |Nays:|Harkey, Donnelly,         |
          |     |Miller                    |     |Nielsen, Smyth, Wagner    |
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           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 








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            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 
            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)Requires 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.

          10)Requires the law enforcement agency to provide at least 48 
            hours advance notice to the public of the general location of 
            the checkpoint.

          11)Requires the time of day and duration of checkpoints to be 
            carefully reviewed and the effectiveness, safety, and 
            motorists' concerns to be taken into account.

          12)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 








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            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.  

          13)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.  

          14)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.  

          15)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 
            checkpoint operation.  

          16)Prohibits a driver who does not wish to submit to the 
            checkpoint from being compelled to drive through the 
            checkpoint.  

          17)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.  

          18)Prohibits law enforcement agencies from conducting combined 
            sobriety checkpoint and vehicle inspection programs.  

           EXISTING LAW  :








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          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.  

           FISCAL EFFECT  :  According to the Assembly Appropriations 
          Committee, negligible state costs.

           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 the University of California, Berkeley.  
          The percentage of vehicle seizures in these roadway operations 
          has increased 53% statewide compared to 2007.  
          








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          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 (1987) 
          43 Cal.3d 1321.  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 (9th Cir. 2005, 429 F.3d 858), the 9th Circuit Court 
          of Appeals held 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 law enforcement agencies often 
          conduct checkpoints in broad daylight or in locations 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."  
          

           Analysis Prepared by  :   Howard Posner / TRANS. / (916) 319-2093 
          








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