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).) AB 2690 Page 2 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. AB 2690 Page 3 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 AB 2690 Page 4 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 AB 2690 Page 5 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 AB 2690 Page 6 281].) 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 AB 2690 Page 7 (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 ofmarijuana. 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 AB 2690 Page 8 (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