BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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6
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AB 2690 (Mullin) 0
As Amended March 20, 2014
Hearing date: June 24, 2014
Vehicle Code
MK:sl
DRIVING UNDER THE INFLUENCE
HISTORY
Source: California District Attorneys Association
Prior Legislation: None
Support: California Association of Highway Patrolmen
Opposition:None known
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUE
SHOULD THE TERM "PRIOR VIOLATIONS" BE CHANGED TO "SEPARATE
VIOLATIONS" IN THE STATUTE AUTHORIZING ENHANCED PENALTIES FOR
MULTIPLE DUI VIOLATIONS WITHIN 10 YEARS?
PURPOSE
The purpose of this bill is to change 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
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felony for specified driving under the influence (DUI) offenses.
Existing law states that it is unlawful for a person who is
under the influence of any alcoholic beverage to drive a
vehicle. (Vehicle Code, § 23152 (a).)
Existing law 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. (Vehicle Code, § 23152 (b).)
Existing law 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. (Vehicle Code §
23152 (e) & (f).)
Existing law 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. (Vehicle Code, §
23153 (a).)
Existing law 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. (Vehicle Code § 23153 (b).)
Existing law 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
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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 the
Department of Motor Vehicles (DMV). (Vehicle Code, § 23550 (a).)
Existing law provides that gross vehicular manslaughter while
intoxicated is punishable by imprisonment in the state prison
for 4, 6, or 10 years, except as provided. (Penal Code § 191.5,
(c)(1).)
Existing law provides that 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.
(Penal Code § 191.5 (c)(2).)
Existing law 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. (Vehicle Code§ 23217.)
Existing law 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 DUI offenses, and the offense occurred within
10 years of any of the following (Vehicle Code, § 23550.5 (a)):
A prior violation of a DUI offense punished as a felony,
as provided;
A prior violation of a DUI causing injury that was
punished as a felony; or,
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A prior violation of vehicular manslaughter with gross
negligence that was punished as a felony.
Existing law 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. (Vehicle Code, § 23550.5 (b).)
Existing law requires the DMV to revoke the driving privilege of
a person convicted of one of the offenses described above.
(Vehicle Code § 23550.5 (c).)
Existing law 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. (Vehicle
Code § 23550.5 (d).)
This bill changes the word "prior" in Vehicle Section 23550.5(a)
to "separate" so that enhanced penalties clearly apply
regardless of the timing of the offense.
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
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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 that 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.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted 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 opposed the
state's motion, arguing 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 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, 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." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
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means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
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;
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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
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 the Bill
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. 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 violations" to "separate violations".
This achieves the Legislature's intent of punishing
multiple DUI offenders more severely.
Vehicle Code §23550.5(a) provides that any DUI that
occurs within 10 years of a prior felony DUI is also
charged as a felony.
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Current law also states a general intent that a person
be subject to enhanced penalties for multiple DUI
offenses within a 10 year period, regardless of whether
the convictions are obtained in the same sequence as
the offenses had been committed (Vehicle Code §23217).
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 (1997) 16 Cal.4th
1210 and People v. Baez (2008) 167 Cal.App.4th 197.
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 enhanced penalties.
Take, for example, a person who is charged with DUI in
February. In April, while awaiting trial on the
February DUI, they drive drunk and injure someone,
which is a felony. They plead guilty to the April
felony DUI before the trial begins on the February DUI.
The February DUI cannot then be charged as a felony,
despite having occurred within 10 years of a felony DUI
- precisely the situation contemplated in Vehicle Code
§23217.
Related statutes pertaining to multiple DUI offenses
have been amended over time to change language from
"prior" offenses to "separate" offenses. This is true
for both Vehicle Code §23550, as well as Vehicle Code
§23550.5(b)
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2. Vehicle Code Section 23550.5
A non-injury DUI offense is normally punished as a misdemeanor.
(Vehicle 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. (Vehicle
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. The court concluded that
"the Legislature intended to subject offenders who commit
vehicular manslaughter while intoxicated to enhanced penalties
in connection with other DUI convictions regardless of the
timing of the underlying conduct" (People v. Baez at 200). In
its analysis, the court carefully considered the language of the
statute in order to determine the Legislature's intent.
Section 23550.5, subdivision (b) does not require the
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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 a DUI
conviction occur subsequent to a conviction of
vehicular manslaughter while intoxicated. Tellingly,
the statute does not require the prior conviction 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 here excluded.' " (Grubb & Ellis Co. v. Bello
(1993) 19 Cal.App.4th 231, 240 [23 Cal. Rptr. 2d 281].)
(People v. Baez at 202 )
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 Vehicle Code, §§ 23540, 23546
and 23550.)
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