BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
1
1
2
AB 1128 (Salas) 8
As Amended June 26, 2013
Hearing date: July 2, 2013
Business and Professions Code
MK:mc
ALCOHOLIC BEVERAGES:
UNDERAGE DRINKING
HISTORY
Source: Author
Prior Legislation: AB 1657 (Sharon Runner) - failed Senate
Public Safety, 2007
AB 1658 (Sharon Runner) - Chapter 743, Stats. 2007
AB 2967 (Sharon Runner) - failed Senate Public
Safety, 2006
AB 454 (Sharon Runner) - failed Senate Pubic
Safety, 2005
SB 508 (McClintock) - failed Senate Public Safety,
2005
AB 2113 (Bogh) - held Assembly Appropriations, 2002
AB 2037 (La Suer) - Chapter 291, Stats.
2004
AB 1301 (Simitian) - Chapter 625, Stats.
2003
Support: Unknown
Opposition:None known
(More)
AB 1128 (Salas)
PageB
Assembly Floor Vote: Ayes 74 - Noes 1
KEY ISSUE
SHOULD THE EXISTING MISDEMEANOR FOR PURCHASING, FURNISHING, OR
GIVING ALCOHOL TO A PERSON UNDER 21 WHO DRINKS THE ALCOHOL AND THEN
PROXIMATELY CAUSES GREAT BODILY INJURY OR DEATH BE INCREASED TO A
WOBBLER?
PURPOSE
The purpose of this bill is to increase to a wobbler the penalty
for knowingly selling, purchasing for, furnishing or giving
alcohol to a person under 21 who drinks the alcohol and then
proximately causes death or bodily injury to himself/herself or
another.
Existing law states that every person who sells, furnishes,
gives, or causes to be sold, furnished, or given away, any
alcoholic beverage to any person under the age of 21 years is
guilty of a misdemeanor punishable by imprisonment in the county
jail not exceeding six month, by a fine not to exceed $1,000, or
by both a fine and imprisonment. (Business and Professions Code
§ 25658(a).)
Existing law states that any person who violates the law by
purchasing any alcoholic beverage for, or furnishing, giving, or
giving away any alcoholic beverage to, a person under the age of
21 years, and the person under the age of 21 years thereafter
consumes the alcohol and thereby proximately causes great bodily
injury (GBI) or death to himself, herself, or any other person
is guilty of a misdemeanor punishable by not less than six
months, or not more than one year in a county jail. (Business
and Professions Code § 25658(c).)
This bill provides that any person who violates the law by
(More)
AB 1128 (Salas)
PageC
knowingly selling to, purchasing any alcoholic beverage for, or
furnishing, giving, or giving away any alcoholic beverage to a
person under 21 years of age and the person consumes the alcohol
and thereby proximately causes great bodily injury or death to
himself, herself, or another is guilty of a wobbler.
This bill provides that a licensee or an employee, agent or
representative of a licensee shall not be subject to a felony
prosecution under this subdivision for the sale, furnishing,
giving, or giving away of any alcoholic beverage to a person
under 21 years of age unless the licensee or an employee agent
or representative of the licensee had actual prior knowledge the
person to whom the alcoholic beverage was sold, furnished, or
given away was under 21 years of age.
Existing law provides that any on-sale licensee who knowingly
permits a person under the age of 21 years to consume any
alcoholic beverage in the on-sale premises, whether or not the
licensee has knowledge that the person is under the age of 21
years, is guilty of a misdemeanor punishable by imprisonment in
the county jail not exceeding six month, by a fine not to exceed
$1,000, or by both a fine and imprisonment. (Business and
Professions Code § 25658(d).)
Existing law provides that except as provided by law, any person
who violates existing law by furnishing an alcoholic beverage,
or causing an alcoholic beverage to be furnished to a minor
shall be punished by a fine of $1,000, no part of which shall be
suspended, and the person shall be required to perform not less
than 24 hours of community service during hours when the person
is not employed and is not attending school. (Business and
Professions Code
§ 25658(e)(2).)
Existing law provides that any person who violates the
misdemeanor provision in Business and Professions Code section
25658 (c) shall be punished by either 6 months to one year in
county jail and/or a fine of $1,000 plus penalty assessments.
(Business and Professions Code § 2568 (e)(3).)
(More)
AB 1128 (Salas)
PageD
Existing law provides that every person convicted of a felony
for a violation of specified alcoholic beverage regulatory
provisions for which another offense is not provided shall be
punished by a fine of not more than $10,000, imprisonment in a
county jail for not more than one year, imprisonment for 16
months, 2 or 3 years in county jail, or by both a fine and
imprisonment. (Business and Professions Code § 25618.)
This bill provides that any person who violates the misdemeanor
provision in Business and Professions Code section 25658 (c)
shall be punished by either by six months to one year in county
jail and/or a fine of $1,000, or by the punishment described in
Business and Professions Code Section 25618.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
(More)
AB 1128 (Salas)
PageE
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
(More)
AB 1128 (Salas)
PageF
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Currently, it is a misdemeanor for persons to purchase
and provide or sell alcohol to persons under 21 whether
or not it results in bodily harm, injury, or death, to
themselves or another person.
The consumption of alcohol provided to a person less
than 21 years of age, by a person 21 years or older,
who causes great bodily injury or death to himself,
herself, or any other person is a severe situation.
Prosecutors do not have the flexibility to try
offenders under charges suitable for an intensified
negative consequence of their action.
2. Felony for Furnishing Alcohol to a Person Under 21
This bill would increase from a misdemeanor to a wobbler the
penalty when a person knowingly sells, purchases for, furnishes,
or gives any alcoholic beverage to a person under 21 year of age
and that person thereafter consumes alcohol and thereby
proximately causes great bodily injury or death to himself or
herself.
(More)
a. Knowingly
This bill will add a "knowingly" requirement to the existing
misdemeanor, which is a wobbler in this bill, for selling,
furnishing, giving, et cetera, alcohol to a person under 21,
who then drinks it and proximately causes either GBI or death.
Since the "knowingly" modifies the selling, purchasing, et
cetera, it does not require that the person knew that the
individual was under 21, only that they gave the person the
alcohol. For a felony penalty, should it be shown that the
person actually knew that the individual is under 21?
b. Selling
This bill adds selling to the existing misdemeanor, which
becomes a wobbler in this bill, to the penalty for purchasing,
furnishing, giving, or giving away alcohol to a person under
21, who then drinks the alcohol and proximately causes GBI or
death.
c. Wobbler
This bill would increase from a misdemeanor to a wobbler the
penalty for knowingly selling, furnishing, or giving alcohol
to a person under 21, who then drinks it and proximately
causes either GBI or death. A number of bills in the past
have either tried to make the penalty a wobbler or a state
felony and were held in this Committee. Is a felony an
appropriate penalty for furnishing alcohol to a minor, who
then proximately causes GBI or death?
d. Penalty as drafted in this bill
This bill provides that the penalty for the wobbler shall
be either 6 months to one year in county jail, and/or a
(More)
AB 1128 (Salas)
PageH
fine up to $1,000 ($4,100 with penalty assessments<1>), or
as described in Section 25618. Section 25618 purports to
establish a penalty for a felony violation of the Business
and Professions Code for a felony that does not have a
listed penalty but actually instead describes a wobbler
penalty of up to one year in county jail, and/or a fine of
not more than $10,000 ($41,000 with penalty assessments),
or a felony penalty of 16 months, 2 or 3 years in county
jail and/or that fine. This makes it unclear which
misdemeanor penalty would apply. Instead of referring to
another section, if this bill creates a new wobbler, the
specific penalty should be stated in this section.
e. Exemption for licensees
This bill provides that a licensee or an employee, agent or
representative of a licensee shall not be subject to a
felony prosecution for the sale of furnishing, giving, or
giving away of any alcoholic beverage to a person under 21
years of age unless the licensee or an employee agent or
representative of a licensee had actual prior knowledge
that the person to whom the alcoholic beverage was sold,
furnished or given away was under 21. By exempting
licensees, this new felony in this bill would only apply to
an individual who at a party or other event sells,
furnishes, et cetera, alcohol to a person who is under 21
years of age.
3. Prison Impact Considerations
The Assembly Appropriations Committee's analysis of this bill
---------------------------
<1> Until the budget year 2002-2003, there was 170% in penalty
assessments applied to every fine. The current penalty
assessments are approximately 310% plus a flat fee of $79. (See
Penal Code § 1464; Penal Code § 1465.7; Penal Code § 1465.8;
Government Code § 70373; Government Code § 7600.5; Government
Code § 76000 et seq; Government Code § 76000.10; Government Code
§ 76104.6; Government Code § 76104,7.)
AB 1128 (Salas)
PageI
included the following information concerning its potential to
impact the prison system:
Unknown, probably minor nonreimbursable local law
enforcement and incarceration costs, offset to a degree
by increased fine revenue and offender financial
liability.
It is not likely a significant number of offenders
would serve actual jail time under this bill. By
creating an alternate felony/misdemeanor, however, the
bill does create the possibility of longer jail terms
that could impact future realignment formulae and
exacerbate jail overcrowding.
***************