BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1389 (Allen) 9
As Amended May 19, 2011
Hearing date: July 5, 2011
Vehicle Code
MK:mc
VEHICLES: SOBRIETY CHECKPOINTS:
IMPOUNDMENTS
HISTORY
Source: Author
Prior Legislation: AB 1614 (Blumenfield) - 2010, part of Budget
Bill, failed Senate Floor
SB 591 (Cedillo) - never heard in Committee
2005-2006
Support: California Labor Federation; Friends Committee on
Legislation of California; American Civil Liberties
Union; California Immigrant Policy Center; Coalition
for Humane Immigrant Rights of Los Angeles; Mexican
American Legal Defense and Education Fund; Pico
California; Contra Costa Interfaith Supporting
Community Organization; Pomona Habla/Speaks Community
Speaks; Oakland Community Organizations; Causa Justa;
Services, Immigrant Rights and Education Network;
International Institute of the Bay Area
Opposition:California State Sheriffs' Association; California
Police Chiefs Association; the California Peace
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Officers' Association; California District Attorneys
Association; MADD California; San Bernardino County
Sheriff; City of Fresno; Supervisor Dianne Jacob, San
Diego County Board of Supervisors
Assembly Floor Vote: Ayes 54 - Noes 22
KEY ISSUES
SHOULD SOBRIETY CHECKPOINTS BE SEPARATE FROM VEHICLE INSPECTION
CHECKPOINTS?
(CONTINUED)
SHOULD THE LAW SPECIFIY PROCEDURES FOR SOBRIETY CHECKPOINTS?
SHOULD CARS AT A SOBRIETY CHECKPOINT ONLY BE IMPOUNDED UNDER
SPECIFIED CIRCUMSTANCES?
PURPOSE
The purpose of this bill is to codify the case of Ingersoll v.
Palmer to separate sobriety checkpoints from vehicle inspection
checkpoints and to provide when cars may be impounded under
sobriety checkpoints.
Existing law provides that a board of supervisors may, by
ordinance, establish a combined vehicle inspection and sobriety
checkpoint program to check for violations of smog standards and
to identify drivers who are DUI. (Vehicle Code � 2814.1.)
Existing law provides that a driver of a motor vehicle shall
stop and submit to an inspection when signs and displays are
posted requiring that stop. (Vehicle Code � 2814.1(b).)
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This bill separates vehicle inspection checkpoints from sobriety
checkpoints.
This bill provides that CHP and the governing body of a city,
county, or city and county may adopt an ordinance or resolution
to establish on the highways under its jurisdiction a sobriety
checkpoint program to identify drivers who are DUI.
This bill provides that the selection of the site of the
checkpoint and the procedures for a checkpoint operation,
including but not limited to, time and location shall be
determined by supervisory law enforcement personnel.
This bill provides that the law enforcement agency that conducts
the checkpoints shall employ a neutral methodology for
determining which vehicles to stop at the checkpoint, or may
stop all vehicles that drive through the checkpoint.
This bill provides that the law enforcement agency shall ensure
that there are proper lighting, warning signs and signals, and
clearly identifiable official vehicles, and uniformed personnel
to minimize the risk to motorists and their passengers and
shall only operate a checkpoint where traffic volume allows for
the safe operation of the program.
This bill provides that each motorist stopped shall be detained
so that the officer may briefly question the driver and to look
for signs of intoxication such as alcohol on the breath, slurred
speech, and glassy or bloodshot eyes. If the driver does not
display signs of impairment, he or she should be permitted to
drive on without further delay.
This bill provides that the law enforcement agency shall provide
advance notice of the checkpoint's general location to the
public at least 48 hours prior to the checkpoint operation.
This bill provides that the location of the checkpoint shall be
based on a location that has high incidence of DUI arrests or a
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high volume of DUI related accidents and shall be determined by
supervisory officers of the law enforcement agency conducting
the sobriety checkpoint.
This bill provides that the time of day and the duration of
checkpoints shall be carefully reviewed and the effectiveness
and safety of checkpoints, as well as motorists concerns shall
be taken into account.
This bill provides that the law enforcement agency shall conduct
the checkpoint after dusk or at a time and for a duration that
are reasonable and effective to the objective, if deterring DUI
offenses.
This bill provides that a driver of a motor vehicle who elects
to drive through the checkpoint shall stop and submit to an
inspection when signs and displays are posted requiring that
stop.
This bill provides that notwithstanding provisions for
impoundment of vehicles, a peace officer or any other authorized
person shall not cause the impoundment of a vehicle at a
sobriety checkpoint established pursuant to this section unless
one of the following applies:
The driver of the vehicle is suspected of driving in
violation of specified driving on a suspended or revoked
license provision or while DUI.
The vehicle is subject to impoundment because it was
used to evade a peace officer.
There is probable cause to believe that the vehicle was
used as a means of committing a public offense other than
being an unlicensed driver.
There is probable cause that the vehicle itself is
evidence of a crime.
The driver of the vehicle is not driving with a valid
driver's license and none of the following apply:
o The driver is able to obtain a validly
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licensed driver to drive the vehicle.
o The driver is able to park or move the vehicle
in a manner that does not impeded traffic or threaten
public safety until a validly licensed driver can
retrieve the car or until the checkpoint ends.
o A peace officer or 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.
This bill provides that the public entity shall not be liable
for the parking of a vehicle driven by an unlicensed driver.
This bill provides a law enforcement agency shall not conduct a
combined sobriety and vehicle inspection program.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
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On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
AB 1389 will establish uniformity in the way that DUI
checkpoints and vehicle impoundments are conducted
across the state. AB 1389 codifies into law two court
cases dealing with DUI checkpoints and impoundments.
The first case is Ingersoll v. Palmer which is a
California State Supreme Court decision from 1987,
which articulated specific guidelines for DUI
checkpoints to ensure that they are constitutional
under the 4th Amendment.
In City of Cornelius v. Miranda, the Ninth Circuit
Court of Appeals in 2005 determined that law
enforcement should apply the community caretaking
doctrine when determining whether or not to impound a
vehicle. Both these cases establish clarity and
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uniformity with respect to the way that 1) DUI
checkpoints, and 2) vehicle impoundments of unlicensed
drivers, are conducted across the state of California.
Currently, there is no set, statewide protocol that is
followed by all jurisdictions for these procedures.
The bill establishes basic guidelines as to how DUI
checkpoints can be set up, for example, that a neutral
methodology is used for determining which vehicles
shall stop at the checkpoint, that proper notice is
given for the checkpoints, that the location of the
checkpoint is based on data showing high incidence of
arrests for driving under the influence, and that
checkpoints are conducted at a reasonable time in the
day.
The bill also establishes requirements for impounding
the vehicle, specifically that two conditions must be
met in order for a vehicle to be impounded. First,
the driver must not have a valid driver's license,
and , second, any of the following must apply: the
driver cannot obtain a validly licensed driver to
drive the vehicle, the driver is unable to remove the
vehicle to a location that does not impede traffic
until a validly licensed driver can retrieve the
vehicle, or the peace officer is able to lawfully
remove the vehicle to a place that does not impede
traffic.
By codifying this into law, communities will have a
better understanding of the proper checkpoint and
impoundment protocol. There have been unintended
consequences to sobriety checkpoints - namely, it has
been bad for community policing. The guidelines that
we have proposed in this legislation help the
community and local police start at the same place in
talking about the checkpoints and will mitigate
discussions on how they should be conducted. This
will then help us get to speak about how to make our
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community safer-something we all want.
Currently, without the guidelines written in law,
communities and police spend time arguing what a legal
checkpoint looks like, instead of working together to
discuss how they should be conducted. This bill will
give community members the same set of guidelines that
law enforcement understand so that we can start a
productive dialogue about what makes our community
safer.
2. Focused Sobriety Checkpoints
Under existing law, sobriety checkpoints-law enforcement run
checkpoints set up to look for people driving DUI and to make
people aware of the dangers of driving DUI-are sometimes run
with vehicle inspection checkpoints looking for smog regulation
violations under Vehicle Code section 2814.1. Supporters argue
that the dual use checkpoints, which do not focus exclusively on
DUI, dilutes the deterrent impact that DUI checkpoints have been
shown to have. This bill separates out DUI checkpoints from
vehicle inspection checkpoints.
3. Codification of Ingersoll v. Palmer
In order to create uniformity for sobriety checkpoints
throughout the state, this bill codifies Ingersoll v. Palmer
(1987) 43 Cal 3rd 1321, which found DUI checkpoints
constitutional if certain factors are met.
In Ingersoll, we examined the question whether
sobriety checkpoints are permissible under the United
States and California Constitutions. The case
involved a challenge brought by California taxpayers
against various law enforcement officials and cited,
as an example, a sobriety checkpoint program
established by the Burlingame Police Department. As
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part of that program, law enforcement officials
prepared a manual governing checkpoint operations,
including guidelines established by the Attorney
General, a cost analysis, factors affecting selection
of the checkpoint location, required personnel and
equipment, training, press relations and publicity,
and procedures for a follow-up evaluation. The
Burlingame sobriety checkpoint operated pursuant to
these guidelines. (Ingersoll, supra, 43 Cal.3d at pp.
1325-1327 supra, 43 Cal.3d at pp. 1325-1327.)
In examining the challenge presented in Ingersoll, we
held: HN8The touchstone for all issues under the
Fourth Amendment and article I, section 13 of the
California Constitution is reasonableness. (See Terry
v. Ohio �1968] 392 U.S. 1, 19 �20 L.Ed.2d 889, 904, 88
S.Ct. 1868]; People v. Hyde �1974] 12 Cal.3d 158, 166
�115 Cal.Rptr. 358, 524 P.2d 830], conc. opn. �of
Wright, C. J.] at pp. 172-173.) �] HN9The federal
test for determining whether a detention or seizure is
justified balances the public interest served by the
seizure, the degree to which the seizure advances the
public interest and the severity of the interference
with individual liberty. (Brown v. Texas (1979) 443
U.S. 47, 50-51 �61 L.Ed.2d 357, 361-362, 99 S.Ct.
2637].) In addition, federal constitutional
principles require a showing of either the officer's
reasonable suspicion that a crime has occurred or is
occurring or, as an alternative, that the seizure is
'carried out pursuant to a plan embodying explicit,
neutral limitations on the conduct of individual
officers.' (Brown v. Texas, supra, 443 U.S. at p. 51
�61 L.Ed.2d at p. 362], citing Delaware v. Prouse
(1979) 440 U.S. 648, 663 �59 L.Ed.2d 660, 673-674, 99
S.Ct. 1391] and
United States v. Martinez-Fuerte (1976) 428 U.S. 543,
558-562 �49 L.Ed.2d 1116, 1128-1131, 96 S.Ct. 3074].)"
(Ingersoll, supra, 43 Cal.3d at p. 1329, supra, 43
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Cal.3d at p. 1329.)
The primary purpose of a sobriety checkpoint is to
"prevent and deter conduct injurious to persons and
property." (Ingersoll, supra, 43 Cal.3d 1321, 1331,
supra, 43 Cal.3d 1321, 1331.) In Ingersoll, in
applying Brown's three-pronged balancing test, we
determined that (1) "�d]eterring drunk driving and
identifying and removing drunk drivers from the
roadways undeniably serves a highly important
governmental interest," and (2) sobriety checkpoints
advance this interest. (43 Cal.3d at pp. 1338-1341.)
In examining the third prong of the Brown balancing
test, which we rephrased as "the intrusiveness on
individual liberties engendered by the sobriety
checkpoints," we identified eight "factors important
in assessing intrusiveness," noting that such factors
"provide functional guidelines for minimizing the
intrusiveness of the sobriety checkpoint stop." (Id.
at p. 1341 at p. 1341.)
The factors identified in Ingersoll are:
(1) Whether the decision to establish a sobriety
checkpoint, the selection of the site, and the
procedures for the operation of the checkpoint are
made and established by supervisory law enforcement
personnel;
(2) Whether motorists are stopped according to a
neutral formula, such as every third, fifth or tenth
driver;
(3) Whether adequate safety precautions are taken,
such as proper lighting, warning signs, and signals,
and whether clearly identifiable official vehicles and
personnel are used;
(4) Whether the location of the checkpoint was
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determined by a policymaking official, and was
reasonable, i.e., on a road having a high incidence of
alcohol-related accidents or arrests;
(5) Whether the time the checkpoint was conducted and
its duration reflect "good judgment" on the part of
law enforcement officials;
(6) Whether the checkpoint exhibits sufficient indicia
of its official nature (to reassure motorists of the
authorized nature of the stop);
(7) Whether the average length and nature of the
detention is minimized; and
(8) Whether the checkpoint is preceded by publicity.
(Ingersoll, supra, 43 Cal.3d at pp. 1341-1347, supra,
43 Cal.3d at pp. 1341-1347.) (People v. Banks, 6 Cal.
4th 926, 935-937 (Cal. 1993).)
This bill takes the factors from Ingersoll and codifies them as
follows:
4. Impoundment of Cars for Reasons Other Than DUI at
Checkpoints
Under this bill, a car will only be impounded at a sobriety
checkpoint under only specified circumstances:
The driver is DUI.
The driver has had his or her license suspended because
his or her license was suspended or revoked for reckless
driving; for a DUI; because he or she has been found to be
a habitual traffic offender; or, because he or she refused
to take a chemical test when stopped for DUI.
The vehicle was used for evading a peace officer.
There is probable cause to believe the vehicle was used
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in a public offense, not relating to driving without a
license.
There is probable cause to believe that the vehicle
itself tends to show that a crime has been committed or the
vehicle contains evidence that cannot readily be removed,
other than driving without a license.
The driver does not have a valid licensed and cannot
obtain a valid license, park the car in a safe place until
a licensed driver can retrieve it, or a peace officer is
not able to readily and lawfully remove the vehicle to a
place that does not impede traffic or threaten public
safety.
While a car may not be impounded except for the reasons listed,
a person could still be cited for any violations that may apply.
5. Support
Supporters of the bill believe that codifying Ingersoll will
lead to uniformity of checkpoints in the state. They also
believe that in some locales sobriety checkpoints have been used
more as license checkpoints and that has taken the focus off the
purpose of sobriety checkpoints, which is to reduce drinking and
driving.
The ACLU states:
�This bill] codifies state and federal case law
governing checkpoints to the California Vehicle Code.
In 1987, the California Supreme Court case Ingersoll
v. Palmer established the requirements on how, when
and where law enforcement agencies can set up sobriety
checkpoints. �This bill] would "codify" the legal
language found in Ingersoll v. Palmer, to provide
clarity for law enforcement and communities. The
Ingersoll v. Palmer language is already included in
the guidelines used by the California Highway Patrol
to determine when, how and where to set up
checkpoints. �This bill] places legal constraints
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around how and where checkpoints can be set up in a
local jurisdiction, such as requiring they operate
after dark, in areas with high likelihood of DUIs and
posted with advanced notice for motorists. In
addition, the bill codifies Miranda v. City of
Cornelius, which is the Ninth Circuit Court of Appeals
decision that provides that a car that can be safely
parked by a licensed driver will not be impounded
under the "community caretaker provision."
The Friends Committee on Legislation also supports this bill
stating:
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We are specifically concerned about the economic
hardship that DUI checkpoints are creating for
California's undocumented and low-income residents.
As you are aware, California prohibits undocumented
residents from obtaining driver's licenses. On
average, DUI checkpoints are impounding seven vehicles
for every drunk driver arrest and the number of
impoundments is steadily increasing. Despite good
intentions, the increased impoundments for driving
without a license creates the perception that the
police are misusing their authority in order to
generate revenues and are targeting neighborhoods
where they are likely to find more unlicensed drivers.
This undermines respect for the law and for law
enforcement, which is crucial for effective community
policing.
6. Opposition
The opposition disagrees with the author and supporters that
this bill codifies the Ingersoll and City of Cornelius' cases.
MADD opposes this bill stating:
Sobriety checkpoints are one of the most critical
tool's available for law enforcement to deter drunk
driving. Sobriety checkpoints send a message that if
a motorist chooses to drink and drive, he or she will
get caught. A successful sobriety checkpoint occurs
when no one is arrested for DUI.
Sobriety checkpoints also help law enforcement find
and arrest those endangering our families' safety.
According to DMV, there are 1 million people in
California with a suspended or revoked license. In
2009, per DMV there were 170,622 convictions for
driving while suspended in California. Of these
convictions 43, 598 were operating vehicles illegally
without a valid driver's license as a result of a DUI.
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�This bill] condones driving without a valid driver's
license in California as it restricts the ability for
law enforcement to enforce current laws in California
that are meant to protect people on roadways.
Specifically, the bill would make it illegal for
police to enforce laws related by not limited to:
drivers licenses, vehicle registration, and checking
for outstanding warrants or probation violations. If
lawmakers want to change the requirements to operate a
vehicle legally on California roadways, this can be
done without compromising law enforcement's ability to
enforce DUI sobriety checkpoints.
The California Peace Officers' Association are among other law
enforcement groups that also oppose this bill stating:
The sweeping and restrictive provisions of �this bill]
extend beyond the legal standards for sobriety
checkpoint operation established by the California
Supreme Court and the U.S. Supreme Court. If enacted,
this bill would create a controversy between what
higher courts have held regarding sobriety checkpoints
and what this bill would require. The disastrous
results of the confusion this bill creates would be
increased litigation time and motions from the
criminal defense bar, longer criminal court dockets as
judges struggle to interpret the new statutory
guidelines, and culpable drivers escaping
responsibility.
7. Similar Legislation
The provisions of this bill that do not deal with the
codification of the Ingersoll are nearly identical to the
provisions in AB 353 (Cedillo), which is also scheduled to be
heard in this Committee on July 5, 2011.
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