BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          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?





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                                                           AB 2552 (Torres)
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                                       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 




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                                                           AB 2552 (Torres)
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          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 




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                                                           AB 2552 (Torres)
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          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:





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                 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:





























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               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.





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                                                           AB 2552 (Torres)
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               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)
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               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.


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