BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2690
                                                                  Page  1

          Date of Hearing:  April 29, 2014
          Counsel:       Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                    AB 2690 (Mullin) - As Amended:  March 20, 2014
           
           
           SUMMARY  :  Changes the term "prior violations" to "separate  
          violations" in a statute that authorizes enhanced penalties if  
          the current offense occurred within 10 years of a prior  
          conviction that was punished as a felony for specified driving  
          under the influence (DUI) offenses. 

           EXISTING LAW  : 

          1)States that it is unlawful for a person who is under the  
            influence of any alcoholic beverage to drive a vehicle.  (Veh.  
            Code, § 23152, subd. (a).)

          2)States that it is unlawful for a person who has 0.08 % or  
            more, by weight, of alcohol in his or her blood to drive a  
            vehicle. (Veh. Code, § 23152, subd. (b).)

          3)Provides that it is unlawful for a person who is under the  
            influence of any drug, or a combined influence of any  
            alcoholic beverage and drug to drive a vehicle. (Veh. Code, §  
            23152, subds. (e) & (f).)

          4)Prohibits any person, while under the influence of any  
            alcoholic beverage to drive a vehicle and concurrently do any  
            act forbidden by law, or neglect any duty imposed by law in  
            driving the vehicle, and consequently proximately causing  
            bodily injury to any person other than the driver.  (Veh.  
            Code, § 23153, subd. (a).)

          5)Prohibits any person, while having 0.08% or more, by weight,  
            of alcohol in his or her blood to drive a vehicle and  
            concurrently do any act forbidden by law, or neglect any duty  
            imposed by law in driving the vehicle, and consequently  
            proximately causing bodily injury to any person other than the  
            driver.  (Veh. Code, § 23153, subd. (b).)









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          6)States that a person is guilty of a public offense, punishable  
            by imprisonment in the state prison or confinement in a county  
            jail for not more than one year and by a fine of not less than  
            $390 nor more than $1,000 if that person is convicted of a  
            violation of driving under the influence (DUI) offenses, and  
            the offense occurred within 10 years of any of the following  
            (Veh. Code, § 23550.5, subd. (a)):

             a)   A prior violation of a DUI offense punished as a felony,  
               as provided;

             b)   A prior violation of a DUI causing injury that was  
               punished as a felony; or,

             c)   A prior violation of vehicular manslaughter with gross  
               negligence that was punished as a felony.

          7)Provides each person who, having previously been convicted of  
            gross vehicular manslaughter while intoxicated, a felony  
            violation vehicular manslaughter while intoxicated, or  
            vehicular manslaughter committed during operation of a vessel,  
            is subsequently convicted of a DUI or DUI causing injury, is  
            guilty of a public offense punishable by imprisonment in the  
            state prison or confinement in a county jail for not more than  
            one year and by a fine of not less than $390 nor more than  
            $1,000. (Veh. Code, § 23550.5, subd. (b).)

          8)Requires the Department of Motor Vehicles (DMV) to revoke the  
            driving privilege of a person convicted of one of the offenses  
            described above.  (Veh. Code, § 23550.5, subd. (c).)

          9)Designates a person convicted of a DUI or a DUI causing injury  
            that is punishable under the enhanced penalties provided in  
            this section as a habitual traffic offender for a period of  
            three years, subsequent to the conviction, and requires the  
            person to be advised of this designation. (Veh. Code, §  
            23550.5, subd. (d).)

          10)Requires a person who is convicted of a DUI and the offense  
            occurred within 10 years of three or more separate violations  
            of specified DUI related offenses, as specified, to be  
            punished as a county jail-eligible felony, or as a misdemeanor  
            in county jail for not less than 180 days nor more than one  
            year, and by a fine of not less than $390 nor more than $1000.  
             The person's driving privilege shall be revoked by DMV. (Veh.  








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            Code, § 23550, subd. (a).)

          11)Gross vehicular manslaughter while intoxicated is punishable  
            by imprisonment in the state prison for 4, 6, or 10 years,  
            except as provided.  (Pen. Code, § 191.5, subd. (c)(1).)

          12)Vehicular manslaughter while intoxicated is punishable as a  
            misdemeanor by imprisonment in the county jail for not more  
            than one year or as a felony by imprisonment in the county  
            jail for 16 months or 2 or 4 years.  (Pen. Code, § 191.5,  
            subd. (c)(2).) 

          13)States the Legislative finding and declaration that the  
            timing of court proceedings should not permit a person to  
            avoid aggravated mandatory minimum penalties for multiple  
            separate offenses occurring within a 10-year period.  It is  
            the intent of the Legislature to provide that a person be  
            subject to the enhanced mandatory minimum penalties for  
            multiple offenses within a period of 10 years, regardless of  
            whether the convictions are obtained in the same sequence as  
            the offenses had been committed.  (Veh. Code, § 23217.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "According to  
            the DMV's 2013 California DUI-MIS Report, there were nearly  
            150,000 DUI convictions in California in 2010 (the most recent  
            year for which data is available).  More than 25% of those  
            convictions were for a repeat violation.  

          "Repeat offenders tend to be more inclined to drive drunk again,  
            and with even higher blood alcohol content [BAC].  The same  
            2013 DMV study shows that repeat offenders had an average BAC  
            level of more than twice the legal limit when they were  
            arrested.

            "For decades, legislative intent to impose more severe  
            punishment on repeat DUI offenders has been reflected in  
            statute.  However, some offenders are using a loophole in the  
            law to avoid enhanced penalties.

            "AB 2690 conforms Vehicle Code §23550.5(a) with other statutes  
            relating to multiple DUI offenses, by changing the term 'prior  








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            violations' to 'separate violations'.  This achieves the  
            Legislature's intent of punishing multiple DUI offenders more  
            severely."

           2)Statutory Construction of Vehicle Code Section 23550.5  :  A  
            non-injury driving under the influence (DUI) offense is  
            normally punished as a misdemeanor. (Veh. Code, § 23152.)   
            However, a DUI offense may be charged as a felony if one of  
            the following applies: (1) the defendant has a prior violation  
            within the last 10 years of a DUI offense that was punished as  
            a felony; (2) the defendant has a prior conviction for gross  
            vehicular manslaughter while intoxicated; or (3) the defendant  
            has been previously convicted within the last 10 years of  
            three or more separate DUI violations. (Veh. Code, §§ 23550 &  
            23550.5.)

          This bill affects defendants who have a prior violation within  
            the last ten years of a DUI offense that was punished as a  
            felony.  Specifically, the bill would replace the "prior  
            violation" requirement with a "separate violation"  
            requirement.  As illustrated in the following case, there is a  
            significant difference between "prior" and "separate"  
            violations in terms of applying the penalty enhancement from a  
            misdemeanor to a penalty pursuant to Vehicle Code Section  
            23550.5.

          In People v. Baez (2008) 167 Cal. App. 4th 197, the defendant  
            was arraigned on DUI charges, and then a week later he was  
            arrested for DUI and vehicular manslaughter while intoxicated.  
             The defendant was convicted of those charges arising from the  
            subsequent manslaughter DUI.  Applying the penalty enhancement  
            in subdivision (b) of Vehicle Code Section 23550.5 for a prior  
            conviction of DUI manslaughter, the defendant received a  
            felony conviction for the prior unresolved DUI.  

          On appeal, the appellate court considered whether, in a  
            prosecution for DUI, the defendant was subject to the enhanced  
            penalty based on manslaughter DUI, even though the prior  
            conviction for manslaughter DUI arose from conduct occurring  
            after the commission of the present offense. In its analysis,  
            the court carefully considered the language of the statute in  
            order to determine the Legislature's intent.  "When looking to  
            the words of the statute, a court gives the language its  
            usual, ordinary meaning. [Citations.] If there is no ambiguity  
            in the language, we presume the Legislature meant what it said  








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            and the plain meaning of the statute governs. [Citations.]"  
            (People v. Baez, supra, 167 Cal. App. 4th at 201, citing  
            People v. Snook (1997) 16 Cal.4th 1210, 1216-1217.)

               In relevant part,  section 23550.5  provides: "(a) A  
               person is guilty of a public offense, punishable by  
               imprisonment in the state prison or confinement in a  
               county jail for not more than one year and by a fine  
               of not less than three hundred ninety dollars ($ 390)  
               nor more than one thousand dollars ($ 1,000) if that  
               person is convicted of a violation of  Section 23152  or  
                23153  , and the offense occurred within 10 years of any  
               of the following: [] (1) A prior violation of  Section  
               23152  that was punished as a felony under  Section  
               23550   or this section, or both, or under former  
                Section 23175  or former  Section 23175.5  , or both. []  
               (2) A prior violation of  Section 23153  that was  
               punished as a felony. [] (3) A prior violation of  
               paragraph (1) of  subdivision (c) of Section 192 of the  
               Penal Code  that was punished as a felony. [] (b) Each  
               person who, having previously been convicted of a  
               violation of  subdivision (a) of Section 191.5 of the  
               Penal Code  , a felony violation of  subdivision (b) of  
               Section 191.5  , or a violation of  subdivision (a) of  
               Section 192.5 of the Penal Code  , is subsequently  
               convicted of a violation of  Section 23152  or  23153  is  
               guilty of a public offense punishable by imprisonment  
               in the state prison or confinement in a county jail  
               for not more than one year and by a fine of not less  
               than three hundred ninety dollars ($ 390) nor more  
               than one thousand dollars ($ 1,000)." 

               Section 23550.5, subdivision (b) does not require the  
               commission of the May 2006 Manslaughter DUI offense to  
               precede the commission of the March 2006 DUI offenses.  
                By its terms, the statute requires only that DUI  
               conviction occur subsequent to a conviction of  
               vehicular manslaughter while intoxicated.  Tellingly,  
               the statute does not require the prior conviction to  
               be based on a prior violation.  "It is a well  
               recognized principle of statutory construction that  
               when the Legislature has carefully employed a term in  
               one place and has excluded it in another, it should  
               not be implied where excluded." (Grubb & Ellis Co. v.  
               Bello (1993) 19 Cal.App.4th 231, 240 [23 Cal. Rptr. 2d  








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               281].) To illustrate, the Legislature included the  
               requirement of a "prior violation" in  subdivision (a)  
               of section 23550.5  regarding felony convictions for  
               DUI (  §§ 23152  ,  23153  ) and vehicular manslaughter with  
               gross negligence (  Pen. Code, § 192, subd. (c)(1)  ).  
               However, the Legislature did not impose this  
               requirement when enhancing the punishment for  
               vehicular manslaughter while intoxicated under  
                subdivision (b) of section 23550.5  . We note that the  
               Legislature has not been hesitant about specifying a  
               "prior offense" or a "prior violation" in other  
               contexts, including other provisions under the DUI  
               penalty enhancement scheme. [Citations.] Having done  
               so repeatedly in other contexts, the silence in  
                subdivision (b) of section 23550.5  , regarding the need  
               for a prior violation of vehicular manslaughter while  
               intoxicated, evinces the legislative intent that no  
               such prior conduct is required.

               (People v. Baez, supra, 167 Cal. App. 4th at 201-202.)

          The Baez case construed subdivision (b) of Vehicle Code Section  
          23550.5 in relation to subdivision (a) of the same statute.   
          Because the Legislature used the term "prior conviction" in  
          subdivision (b), but used the term "prior violation" in  
          subdivision (a), it is implied that the Legislature intended the  
          subdivisions to be applied differently.  

          However, the Legislature has stated its intent to provide that a  
          person be subject to the enhanced mandatory minimum penalties  
          for multiple offenses within a period of 10 years, regardless of  
          whether the convictions are obtained in the same sequence as the  
          offenses had been committed.  (Veh. Code, § 23217.)  This bill  
          would change the language in subdivision (a) of Vehicle Code  
          Section 23550.5 from "prior violation" to "separate violation."   
          The term "separate violation" is also used in other sections in  
          the Vehicle Code that authorize enhanced penalties for multiple  
          DUI offenses.  (See Veh. Code, §§ 23540, 23546 and 23550.)  
           
           3)Argument in Support  :  The  California District Attorneys  
            Association  , the sponsor of this bill, writes, "Courts have  
            repeatedly recognized that the use of the word 'prior' to  
            describe an offense has a particular meaning and signifies  
            that the alleged prior conviction must occur prior to the  
            conduct of the currently charged offense. People v. Snook  








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            (1997) 16 Cal.4th 1210 and People v. Baez (2008) 167  
            Cal.App.4th 197.

          "Thus, despite the Legislature's clear intent to the contrary,  
            when the order of an offender's DUI convictions does not  
            follow the order of the offenses, the offender escapes more  
            severe penalties."

           4)Current Legislation  :  AB 2500 (Frazier) makes it unlawful for  
            a person to drive a motor vehicle if his or her blood  
            specified amounts of amphetamine, methamphetamine, cocaine or  
            heroin or their metabolites, morphine, phencyclidine, or  
            delta-9-tetrahydrocannabinol of   marijuana.  AB 2500 will be  
            heard by this Committee today.
                
            5)Prior Legislation  :

             a)   AB 2552 (Torres), Chapter 753, Statutes of 2012, 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,  
               and driving under the influence of alcohol and drugs.  

             b)   AB 1443 (Huffman), of the 2009-10 Legislative Session,  
               would have required the permanent revocation of a person's  
               driver's license after a third DUI, with an ability to seek  
               a restoration of the license after 5 years and to provide  
               for a permanent revocation after the fourth DUI.  AB 1443  
               failed passage in the Senate Committee on Public Safety.

             c)   SB 132 (Battin), of the 2003-04 Legislative Session,  
               would have created an exception which allows a prior  
               conviction for DUI which was reduced to a misdemeanor, to  
               be used as a prior felony conviction for the purpose of  
               charging a new DUI as a felony.  SB 132 was held in the  
               Assembly Committee on Appropriations.

             d)   AB 1078 (Jackson), Chapter 849, Statutes of 2001,  
               eliminated the 10-year washout period that existed when a  
               person has been convicted of a gross vehicular manslaughter  
               while DUI or vehicular manslaughter while DUI.

             e)   SB 1025 (Karnette) was substantially similar to AB 1078  








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               (Jackson), Chapter 849, Statutes of 2001.  SB 1025 did not  
               move out of the Assembly Committee on Appropriations. 

             f)   SB 1186 (Senate Committee on Public Safety), Chapter  
               118, Statutes of 1998, recast former Vehicle Code Section  
               23175.5 into Vehicle Code Section 23550.5, along with other  
               non-substantive changes.

             g)   AB 130 (Battin), Chapter 901, Statutes of 1997, provided  
               that once a person was charged with a felony DUI, gross  
               vehicular manslaughter while intoxicated, vehicular  
               manslaughter  or vehicular manslaughter while intoxicated,  
               then that person would be subject to a felony charge for  
               any DUI conviction in the  following 10 years.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California District Attorneys Association (sponsor)

           Opposition 
           
          None

           
          Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744