BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    THIRD READING


          Bill No:  AB 2690
          Author:   Mullin (D), et al.
          Amended:  3/20/14 in Assembly
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 6/24/14
          AYES:  Hancock, Anderson, De León, Knight, Liu, Mitchell,  
            Steinberg

           SENATE APPROPRIATIONS COMMITTEE  :  5-0, 8/14/14
          AYES:  De León, Hill, Lara, Padilla, Steinberg
          NO VOTE RECORDED:  Walters, Gaines

           ASSEMBLY FLOOR  :  79-0, 5/28/14 - See last page for vote


           SUBJECT  :    Driving under the influence

           SOURCE  :     California District Attorneys Association


           DIGEST  :    This bill 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.

           ANALYSIS  :    Existing law:

          1.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  
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            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 the  
            Department of Motor Vehicles (DMV). (Vehicle Code, § 23550  
            (a).) 

          2.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.) 

          3.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.   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. 

          1.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).) 

          2.Requires the DMV to revoke the driving privilege of a person  
            convicted of one of the offenses described above. (Vehicle  
            Code § 23550.5 (c).) 

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          3.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.  

          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.

               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  

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               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).

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee:

           Potential increase in state incarceration costs (General Fund)  
            to the extent the enhanced penalty for multiple DUI offenses  
            leads to additional Department of Corrections and  
            Rehabilitation (CDCR) commitments (for those previously  
            convicted of a serious or violent felony) and/or longer  
            lengths of sentences.  CDCR data indicates over 1,000  
            commitments to state prison in 2013 under the relevant DUI  
            offense statutes. To the extent even one-half to one percent,  
            or five to 10 commitments are impacted by the bill's  
            provisions would result in increased state incarceration costs  

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            of about $150,000 to $300,000 based on the in-state contract  
            bed cost of $30,000.
          
           Potential increase in local incarceration costs to the extent  
            the enhanced penalty for multiple DUI offenses leads to  
            additional jail commitments and/or longer jail terms. To the  
            extent a portion of the new and/or extended jail sentences  
            resulting from this bill would have spent the enhancement in  
            prison prior to 2011 Realignment would potentially result in  
            these costs being subject to state reimbursement.
          
           SUPPORT  :   (Verified  8/15/14)

          California District Attorneys Association (source) 



           ASSEMBLY FLOOR  :  79-0, 5/28/14
          AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,  
            Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian  
            Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,  
            Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,  
            Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon,  
            Gorell, Gray, Grove, Hagman, Hall, Harkey, Roger Hernández,  
            Holden, Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,  
            Maienschein, Mansoor, Medina, Melendez, Mullin, Muratsuchi,  
            Nazarian, Nestande, Olsen, Pan, Patterson, Perea, John A.  
            Pérez, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon,  
            Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,  
            Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
          NO VOTE RECORDED: Vacancy


          JG:nl  8/16/14   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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