BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 2 5 5 AB 2552 (Torres) 2 As Amended May 2, 2012 Hearing date: June 26, 2012 Vehicle Code MK:mc VEHICLES: DRIVING UNDER THE INFLUENCE: CONTROLLED SUBSTANCES HISTORY Source: Author Prior Legislation: None Support: California Peace Officers' Association; California State Sheriffs' Association; California Narcotic Officers' Association; California Police Chiefs Association Opposition:None known Assembly Floor Vote: Ayes 75 - Noes 0 KEY ISSUE SHOULD THE PROVISIONS ON DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS BE RECAST? (More) AB 2552 (Torres) PageB PURPOSE The purpose of this bill is to recast the provisions on driving under the influence of alcohol or drugs. Existing law provides that 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. (California Vehicle Code § 23152(a).) Existing law provides it is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving. (California Vehicle Code § 23152(b).) Existing law provides that it is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code. (California Vehicle Code § 23152(c).) Existing law provides that it is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving (More) AB 2552 (Torres) PageC the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving. (California Vehicle Code § 23152(d).) This bill revises and recasts provisions related to driving under the influence of alcohol or drugs, or the combination of drugs and alcohol by separating the provisions into three distinct sections and subsections: Driving under the influence of alcohol. Driving under the influence of drugs. Driving under the influence of alcohol and drugs. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA") In response to the unresolved prison capacity crisis, since early 2007 it has been the policy of the chair of the Senate Committee on Public Safety and the Senate President pro Tem to hold legislative proposals which could further aggravate prison overcrowding through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/Overcrowding Crisis Aggravation"), the Committee has held measures which create a new felony, expand the scope or penalty of an existing felony, or otherwise increase the application of a felony in a manner which could exacerbate the prison overcrowding crisis by expanding the availability or length of prison terms (such as extending the statute of limitations for felonies or constricting statutory parole standards). In addition, proposed expansions to the classification of felonies enacted last year by AB 109 (the 2011 Public Safety Realignment) which may be punishable in jail and not prison (Penal Code section 1170(h)) would be subject to ROCA because an offender's criminal record could make the offender ineligible for jail and therefore subject to state prison. Under these principles, ROCA has been applied as a content-neutral, provisional measure necessary to ensure that (More) AB 2552 (Torres) PageD the Legislature does not erode progress towards reducing prison overcrowding by passing legislation which could increase the prison population. ROCA will continue until prison overcrowding is resolved. For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. 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. 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. Design capacity is the number of inmates a prison can house based on one inmate per cell, single-level bunks in dormitories, and no beds in places not designed for housing. Current design capacity in CDCR's 33 institutions is 79,650. On January 6, 2012, CDCR announced that California had cut prison overcrowding by more than 11,000 inmates over the last six months, a reduction largely accomplished by the passage of Assembly Bill 109. Under the prisoner-reduction order, the inmate population in California's 33 prisons must be no more than the following: (More) AB 2552 (Torres) PageE 167 percent of design capacity by December 27, 2011 (133,016 inmates); 155 percent by June 27, 2012; 147 percent by December 27, 2012; and 137.5 percent by June 27, 2013. This bill does not aggravate the prison overcrowding crisis described above under ROCA. COMMENTS 1. Need for This Bill According to the author: (More) According to the National Highway Traffic Administration's (NHTSA) "National Roadside Survey of Alcohol and Drug Use by Drivers" based on random road checks, found that 16.3% of all drivers nationwide at night were on various legal and illegal impairing drugs. Based on data from NHTSA, 30 percent of all drivers who were killed in motor vehicle crashes in California in 2010 tested positive for legal and/or illegal drugs. The percentage of the cases has been increasing since 2006. The California Office of Traffic Safety (OTS) reported that drug use in California fatal crashes is rising. According to OTS, in 2009, 1,458 California drivers were killed in crashes, of which 1,173 were tested for drugs after death. The federal government reports that 339 tested positive for "drug involvement," or 23 percent of all drivers. Drug-impaired driving is often under-reported and under-recognized and toxicology testing is expensive. Additionally, because there is not established impairment level for drugs, prosecuting drug impaired driving cases can be difficult. Under current law, all individuals arrested for driving under the influence are arrested under a single, catch-all section of the law. Current law does not distinguish between individuals arrested for being under the influence of alcohol, drugs or a combination of both. This process of arresting individuals for DUI leaves state and local entities with little information to study and understand trends on the different types of substances involved in DUI incidents. (More) AB 2552 (Torres) PageG AB 2552 will break up the code section of the law used by law enforcement to charge individuals for DUI into three sections. These new sections will allow state and local entities to collect arrest data that is more precise and that can reflect the actual numbers of alcohol, drug or a combination of alcohol or drugs. This type of data is critical for health and safety agencies to make better informed decisions regarding funding for officer training, equipment, and/or drug and alcohol programs. This new way of arresting people is a top priority for law enforcement and for state officials because it will help them determine the prevalence of alcohol or other drugs in DUI arrests and find better ways to control it. 2. Reorganizing DUI Section This bill would reorganize the DUI sections to separate driving under the influence of alcohol, from driving under the influence of drugs, and from driving under the influence of alcohol and drugs. While the "the number of alcohol-and drug-involved crash fatalities has decreased for the past 5 years," including a reduction in the number of drugs only convictions, and "the greatest proportion of crash fatalities remains alcohol-related" the separation between drug and alcohol in this bill would allow clearer delineation as to which DUI cases were alcohol involved and which were drug involved.<1> 3. Support In support, the California State Sheriffs' state: Under current law, all individuals arrested for driving ----------------------- <1> California DMV, 2012 Annual Report of the California DUI Management Information System; Annual report to the Legislature of the State of California, January 2012, pp. 63 and 64 http://apps.dmv.ca.gov/about/profile/rd/r_d_report/Section_5/S5-2 36.pdf AB 2552 (Torres) PageH under the influence are arrested under a single, catch-all section of the law. Current law does not distinguish between individuals arrested for being under the influence of alcohol, drugs, or a combination of both. This process leaves state and local entities with little information to study and understand trends on the different types of substances involved in DUI incidents. AB 2552 will break up the code section of the law used by law enforcement to charge individuals for DUI into three sections. These new sections will allow state and local entities to collect arrest data that is more precise and that can reflect the actual numbers of alcohol, drug or a combination of alcohol and drugs. This type of data is critical for health and safety agencies to make better informed decisions regarding funding for officer training, equipment, and/or drug and alcohol programs. ***************