BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
5
5
SB 55 (Hill)
As Introduced December 28, 2012
Hearing date: April 23, 2013
Vehicle Code
MK:mc
IGNITION INTERLOCK DEVICES:
REPEAT DRIVING UNDER THE INFLUENCE OFFENDERS
HISTORY
Source: Author
Prior Legislation: AB 520 (Ammiano) - Chapter 657, Stats. 2011
SB 598 (Huff) - Chapter 193, Stats. 2009
AB 91 (Feuer) - Chapter 217, Stats. 2009
SB 1190 (Oropeza) - Chapter 392, Stats. 2008
SB 1361 (Correa) - Vetoed, 2008
SB 1388 (Torlakson) - Chapter 404, Stats. 2008
AB 2784 (Feuer) - until August 28, 2008 version
SB 177 (Migden) - did not move, 2007
AB 4 (Bogh) - held Assembly Appropriations, 2005
AB 979 (Runner) - Chapter 646, Stats. 2005
AB 638 (Longville) - prior to 7/2/03 amends died on
Concurrence, 2003
AB 1026 (Levine) - failed Senate Public
Safety, 2003
AB 762 (Torlakson) - Chapter 756, Stats.
1998
Support: Distilled Spirits Council of the United States; Diageo;
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National Transportation Safety Board; California Police
Chiefs Association; California State Sheriffs'
Association; Alliance of Automobile Manufactures; Peace
Officers Research Association of California; Crime
Victims Action Alliance
Opposition:California DUI Lawyers Association; California
Attorneys for Criminal Justice;
KEY ISSUE
SHOULD A REPEAT DUI OFFENDER BE REQUIRED TO INSTALL AN IGNITION
INTERLOCK DEVICE ON HIS OR HER VEHICLES FOR A SPECIFIED PERIOD OF
TIME?
PURPOSE
The purpose of this bill is to require a repeat DUI offender to
install an ignition interlock device (IID) on his or her
vehicles for a specified period of time in order to get a
restricted license or to reinstate his or her license.
Existing law provides it is unlawful for any person who is under
the influence of any alcoholic beverage or drug, or under the
combined influence of any alcoholic beverage and drug, to drive
a vehicle. (Vehicle Code § 23152(a).)
Existing law provides that it is unlawful for any person, while
having 0.08 percent or more, by weight, of alcohol in his or her
blood to drive a vehicle. (Vehicle Code § 23152(b).)
Existing law provides that a person who is convicted of a first
DUI is subject to the following penalties when given probation:
possible 48 hours to 6 months in jail;
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$390 to $1,000 fine plus 250% penalty assessments;
completion of a 3-month treatment program or a 9-month
program if the BAC was .20% or more;
6-month license suspension or 10-month suspension if
9-month program is ordered; and
restricted license may be sought upon proof of
enrollment or completion of program, proof of financial
responsibility and payment of fees. However, the court may
disallow the restricted license. (Vehicle Code §§ 13352
(a)(1); 13352.1; 13352.4; 23538(a)(3).)
Existing law provides that a person who is convicted of a first
DUI with injury is subject to the following penalties:
16 months, 2 or 3 years in state prison or 90 days to 1
year in county jail;
$390 to $1,000 fine plus 250% penalty assessments; and
1 year driver's license suspension.
Or, when probation is given:
5 days to one year in jail;
$390 to $1,000 fine plus 250% penalty assessments;
1-year license suspension;
3-month treatment program or a 9-month program if the
BAC was .20% or more; and
the additional penalties that apply to a first DUI
without injury. (Vehicle Code § 23554.)
Existing law provides that the Department of Motor Vehicles
shall advise the person convicted of a second DUI that after
completion of 12 months of the suspension period, the person may
apply for a restricted license subject to the following
conditions are met:
Proof of enrollment in an 18 month or 30 month
driving-under- the influence program.
The person agrees to continued satisfactory
participation in the program.
The person submits proof of installation of an ignition
interlock device.
The person provides proof of insurance.
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The person pays all fees. (Vehicle Code § 13352
(a)(3).)
Existing law provides that the Department of Motor Vehicles
(DMV) shall advise the person convicted of a third DUI that
after completion of 12 months of the suspension period, the
person may apply for a restricted license subject to the
following conditions are met:
Proof of enrollment in an 18 month or 30 month
driving-under-the influence program.
The person agrees to continued satisfactory
participation in the program.
The person submits proof of installation of an ignition
interlock device.
The person provides proof of insurance.
The person pays all fees. (Vehicle Code § 13352
(a)(5).)
Existing law provides that if a first-offender DUI is found to
have a blood concentration of .20% BAC or above or who refused
to take a chemical test, the court shall refer the offender to
participate in a nine-month licensed program. (Vehicle Code §
23538 (b)(2).)
Existing law provides that a first-time DUI offender sentenced
to a nine-month program because of a high BAC or a refusal shall
have their license suspended for 10 months. The law further
provides that their license may not be reinstated until the
person gives proof of insurance and proof of completion of the
required program. (Vehicle Code § 13352.1.)
Existing law provides that a person convicted of a first-time
DUI may apply for a restricted license for driving to and from
work and to and from a driver-under-influence program if
specified requirements are met, paying all applicable fees,
submitting proof of insurance and proof of participation in a
program. (Vehicle Code § 13352.4.)
Existing law provides that a second or subsequent DUI offender
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can get his or her license reinstated earlier if he or she
agrees to install an Ignition Interlock Device (IID) along with
his or her enrollment in the required program, proof of
insurance and payment of specified fees. (Vehicle Code §§
13352(a)(3)(B); (a)(4) (B); (a)(5)(C); (a)(6)(B);
(a)(7)(B)&(C).)
Existing law creates an IID pilot project in Alameda, Los
Angeles, Sacramento and Tulare Counties requiring a person
convicted of a DUI to install an IID for 5 months upon a first
offense, 12 months for a second offense, 24 months for a 3rd
offense, and 36 months for a 4th or subsequent offense.
(Vehicle Code § 23700.)
Existing law requires DMV to report to the Legislature regarding
the effectiveness of the IID pilot project to reduce the number
of first-time violations and repeat DUI offenses. (Vehicle Code
§ 23701.)
This bill , notwithstanding any other law, would require DMV to
inform a person convicted of a DUI that he or she is required to
install an IID on each vehicle he or she owns or operates.
This bill provides that DMV shall advise the person that the
installation of the ignition interlock device on a vehicle does
not allow a person to drive without a valid driver's license.
This bill provides that a person is required to install an IID
as a condition of being issued a restricted driver's license,
being reissued a driver's license, or having a privilege to
operate a motor vehicle reinstated subsequent to a conviction
for a violation or suspension of a driver's license.
This bill provides that if a person is convicted of a DUI, he or
she must install an IID for 12 months if convicted of a 2nd
offense; 24 months if convicted of a 3rd offense; 36 months if
convicted of a 4th or subsequent offense.
This bill provides that if a person is convicted of a DUI with
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injury, he or she must install an IID for 24 months if convicted
of a 2nd offense; 36 months if convicted of a 3rd offense; and
48 months if convicted of a 4th or subsequent offense.
This bill provides that the term of the violation shall begin
once the person has given proof to DMV of the installment.
This bill provides that a person is exempt from the requirements
of this section if within 30 days of the notification, the
person certifies to the department all of the following:
The person does not own a vehicle.
The person does not have access to a vehicle at his or
her residence.
The person no longer has access to the vehicle being
driven by the person at the time he or she was arrested for
a violation that subsequently resulted in a conviction for
a violation listed in this subdivision.
The person acknowledges that he or she is only allowed
to drive a vehicle that is fitted with a functioning IID.
The person acknowledges that he or she is required to
have a valid driver's license before he or she can drive.
This bill requires every manufacturer to provide IID devices to
adopt the following fee schedule:
If the person's income is 100% of the poverty level and
below----10% of the cost of the IID.
If the person's income is 101%-200% of the poverty
level----25% of the cost of the IID.
If the person's income is 201%-300% of the poverty
level----50% of the cost of the IID.
All other offenders are responsible for 100% of the cost
of the IID.
This bill provides that the cost of the ignition interlock
device may only be raised annually equal to the Consumer Price
Index.
This bill provides that an offender's income may be verified by
presentation of that person's current federal income tax return
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or three months of monthly income statements.
This bill provides that "vehicle" does not include a motorcycle
until the state certifies an ignition interlock device that can
be installed on a motorcycle, and a person subject to an IID
restriction shall not operate a motorcycle for the duration of
the IID restriction period.
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
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
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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
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
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reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Under current law, installation of IIDs is optional for
repeat offenders. Only about 20 percent of those who
have a choice of installing an IID or driving on a
restricted license opt for IID installation.
In 2009, the most recent year in which conviction data
is available, there were 161,074 DUI convictions in
California. Of those, 117,642 or 73 percent were first
time offenders and 43,432 or 27 percent were repeat
offenders. The same year, drunk drivers killed more
than 1,200 people and injured 26,000 in California.
Repeat DUI offenders were responsible for a third of
the deaths and two-thirds of the injuries.
2. Existing Pilot Project
In 2009, AB 91 (Feuer) created an IID pilot project in four
counties which mandates the use of an IID for all DUI offenders.
DMV will report on the pilot project in January of 2015
regarding the effectiveness of the pilot project in reducing the
number of first-time violations and repeat offenses in the
specified counties.
The rationale for a pilot project was to see what impact a
mandatory IID program has on recidivism in California. While
the impact of the IID has been studied elsewhere, with mixed
results, the comparisons are not perfect. While some of the
other states began mandating IID, at the same time they
strengthened other sanctions. California has had a complex group
of sanctions including high fines, jail time, licensing
sanctions, mandatory drinker-driver treatment programs and
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optional IID in place since the mid-1980's with sanctions being
evaluated, changed and strengthened on an ongoing basis since.
With a pilot project, DMV can evaluate how best a mandatory IID
system should work in California. By evaluating four counties,
the counties without the mandatory programs act like a control
group for the researchers at DMV. Evaluating how the DUI
sanctions work is something DMV researchers have been doing with
great success since 1990. DMV's reports have helped inform the
Legislature on where changes needed to be made and have helped
reduce recidivism in California. The author points to the
number of DUI arrests in 2009, but that number was actually a
decrease from the year before. Some other relevant statistics
from the DMV 2012 report, which looked at data from 2010,
include:
Alcohol-involved crash fatalities decreased by 15.1% in
2010, the biggest decline since a decreasing trend started
4 years ago.
The number of persons injured in alcohol-involved
crashes decreased by 6.6% in 2010, following a decrease of
8.4% in 2009.
DUI arrests decreased by 6.1% in 2010, after decreasing
by 2.9% in 2009.
The DUI arrest rate per 100 licensed drivers was 0.8 in
2010, slightly lower than 0.9 in 2007-2009, and unchanged
from 0.8 in 2000-2006. This represents a 56% reduction
from the 1.8 rate in 1990.
The percentage of DUI arrests that were felonies
(involving bodily injury or death) decreased slightly, from
2.6% in 2009 to 2.5% in 2010. Felony DUI arrests continue
to constitute a relatively small percentage of all DUI
arrests.
The 1-year recidivism rates for all first DUI offenders
decreased to the lowest level seen in the past 20 years.
The DUI reoffense rate for first offenders arrested in 2009
was 44.7% lower than the reoffense rate for first offenders
arrested in 1990.
The 1-year reoffense rate for second DUI offenders also
decreased to the lowest level seen in the past 20 years.
Recidivism decreased from 9.7% in 1990 to 5.2% in 2009, a
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46.4% relative decrease for second DUI offenders.
After 5 years, the percentage of DUI offenders
reoffending in the 1994 group was much lower (18%) compared
to the percentages reoffending in the 1984 group (27%) and
in the 1980 group (35%), and was equivalent to the
percentage reoffending in the 2004 group (18%). (See DMV,
2012 Annual Report of The California DUI Management
Information System pages iii, 6, 35 and 36
http://apps.dmv.ca.gov/about/profile/rd/r_d_report/Section_5
/S5-236.pdf.)
BEFORE MAKING ANY FURTHER CHANGES TO THE IID REQUIREMENTS IN
CALIFORNIA, SHOULD THE LEGISLATURE WAIT TO SEE THE RESULTS FROM
THE PILOT PROGRAM?
3. IID Requirement for Repeat Offenders
This bill would require a repeat DUI offender to install an IID
on any vehicle he or she owns or operates for a specified period
of time. Much of language in this bill, which was taken from
the existing pilot project, is unclear. Some specific issues
are discussed below. However, if the pilot project were to be
completed, some of the issues and confusion that is in the
drafting of the pilot project would be clear in the report from
DMV so that based on that information the Legislature could, at
that time, thoughtfully draft a permanent IID program if IIDs
are found to be effective in having a long term impact on
recidivism.
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a. "Notwithstanding" any other provision.
This bill provides that it is "notwithstanding any other
provision of law." The notwithstanding language could
arguably override the pilot project that is already in place
for at least the repeat offenders. Does the author wish the
pilot project to end? Although, a statewide requirement will
eliminate any control group making information DMV receives on
recidivism less valuable, it is unclear what purpose the study
will serve if it is not intended to be eliminated.
Furthermore, how does the "notwithstanding" impact other
provisions relating to when and how a person gets a restricted
license, may install an IID and other DUI sanctions?
b. Timing?
This bill provides that a driver's license may not be issued,
reissued or returned to a person after a suspension or
revocation until an IID is installed. Does this require a
person serve their full suspension or revocation or just the
"hard" suspension or revocation time before getting a
restricted license? Could a person opt to put the IID on
earlier and get a restricted license as allowed under existing
law? If a person opted to get the earlier restricted license,
does it count toward the time required in this bill? If not,
shouldn't that be clarified? Should the bill be clear that a
person must meet all the requirements to obtain a restricted
license such as proof of insurance and enrollment in a
program?
What if a person who does not need a restricted license
finishes his or her other probation requirements and waits out
the entire suspension? This bill would still require an IID
be installed even if the license was sought to be reinstated
after the mandatory suspension or revocation passed, even if a
new license was not sought until years later. Is it
appropriate to require an IID installation beyond the period
of a mandatory suspension or revocation if the other
requirements are met within that time?
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The bill does not require an IID on a motorcycle until IIDs
for motorcycles are invented. However, it does provide that a
person "shall not operate a motorcycle for the duration of the
IID device restriction period." (Page 6, line 12.) When does
this period start? According to
another part of the bill, the time period starts when a person
gives proof to DMV that an IID was installed. If a motorcycle
driver can't install an IID, when does the period start for
him or her?
c. What type of license does a person receive?
The bill requires DMV to notify the person that installation
of an IID does not allow a person to drive without a valid
driver's license. However, when installing the IID, a person
is given a "valid license," one that has a restriction
limiting driving to a car with an IID, but still a valid
license. The bill further provides that a person is required
to install an IID "as a condition of being issued a restricted
driver's license, being reissued a driver's license, or having
the privilege to operate a motor vehicle subsequent to a
conviction for a violation or a suspension of a person's
driver's license." (Page 3 lines 34-39.) This language is
not clear. If an IID is required, any license issued is a
"restricted license." The author should consider amending
this bill to correctly refer to the type of a license a person
will receive.
d. Access to a vehicle.
As with the pilot project, a person can be exempted from the
IID requirements if he or she shows within 30 days of the
notification that he or she does not own a vehicle, have
access to a vehicle at his or her residence, and no longer has
access to the vehicle in which he or she was driving at the
time of the DUI. While this type of exemption has always been
somewhat controversial since it has been argued that people
transfer their vehicles to family members. Verifying the
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registration information can also be time consuming for DMV.
Such an exemption is necessary because the cost of a DUI alone
could cause some people to give up a car. However, there
actually can be a question about whether the 30-day limitation
is too restrictive. The person is notified by DMV of the
requirement when DMV receives the court's abstract of
conviction. At this point, a person may or may not have dealt
with the true cost of a DUI: fines of approximately
$1,500-$4,000 with penalty assessments, fees, court and
program costs quickly add up. A person may think that he or
she has the ability to keep his or her car during the time he
or she can't drive it because his or her license is suspended,
then at some point need to sell the car to pay for costs, or
decide it is not worth paying for the car while it can't be
driven. If this were to occur after the 30-day limitation, he
or she would be required to install an IID anyway. Should
there be a mechanism to be exempt from the requirement if
sometime following the 30 days a person is without access to a
vehicle?
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