BILL ANALYSIS Ó AB 897 Page 1 Date of Hearing: May 12, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 897 (Gonzalez) - As Amended May 6, 2015 PROPOSED CONSENT SUBJECT: RETENTION OF RECORDS: COURT FILES KEY ISSUE: should the rules governing Record retention by courts be amended so that court files regarding certain misdemeanor traffic offenses are retained by courts for periods that correlate with the time periods when convictions for those offenses are relevant to future criminal proceedings? SYNOPSIS This modest bill seeks to correct what appears to be a drafting error in the rules governing retention of court files regarding certain misdemeanor traffic offenses. Current law requires courts to retain most misdemeanor case files for five years. There is an exception in current law for case files that involve certain misdemeanor violations of the Vehicle Code., specifically Vehicle Code Sections 23109 (speed contests), 23109.5 (sentencing for speed contests), 23152 (driving under the influence of alcohol, or DUI) and 23153 (DUI causing bodily injury), requiring those case files to be retained for ten AB 897 Page 2 years. It makes sense to retain DUI case files for ten years because a prior offense committed within the past ten years can be charged as an enhancement in a new case. But retaining court records about speed contest violations for ten years is not necessary because a speed contest conviction can only be charged as an enhancement in a new case for five years. On the other hand, current law requires misdemeanor case files alleging Vehicle Code Section 23103 (reckless driving) violations for only five years when it would make sense to retain those records for a longer period. A conviction for reckless driving that is related to an arrest for driving under the influence can be charged as a prior offense in a DUI case that occurs within ten years of the alcohol-related reckless driving conviction, resulting in an enhanced sentence and additional terms of probation. Therefore, the court should retain court files regarding reckless driving offenses for ten years, rather than only five years, as required by current law and should retain court files about speed contest offenses for only five years, rather than ten years, as required by current law. This bill is supported by the Marin County Superior Court and has no opposition on file. It will be referred to the Assembly Appropriations Committee if it should pass out of this Committee. SUMMARY: Changes the rules governing retention of court files involving certain misdemeanor traffic offenses. Specifically, this bill reduces the requirement for courts to retain files regarding allegations of violations of Vehicle Code Sections 23109 (speed contests) and 23109.5 (sentencing for speed contests) from ten years to five years while increasing the requirement for courts to retain files regarding allegations of a violation of Vehicle Code Section 23103. AB 897 Page 3 EXISTING LAW: 1)Requires courts to retain files regarding allegations of most misdemeanor offenses for five years. (Government Code Section 68152(c)(7).) 2)Requires courts to retain files regarding allegations of certain misdemeanor traffic offenses, specifically Vehicle Code Sections 23109 (speed contests), 23109.5 (sentencing for speed contest violations), 23152 (driving under the influence of alcohol, or DUI) and 23153 (DUI causing bodily injury), for ten years. (Government Code Section 68152(c)(7).) 3)Allows for cases where a defendant was charged with a violation of Vehicle Code Section 23152 (DUI), but entered into a plea deal with the government for a violation of 23103 (reckless driving), the resulting conviction will count as a prior under 23103.5(c) for purposes of Sections 23540, 23546, 23550, 23560, 23566, 23622 (all of which provide for enhanced sentencing if a subsequent offense occurs within ten years of the prior). (Vehicle Code Section 23622(a). All further statutory references are to the Vehicle Code, unless otherwise indicated.) 4)Requires a defendant who has been convicted of a violation of Section 23152 (DUI) or Section 23153 (DUI with bodily injury) within the past ten year to participate in an alcohol program as a condition of probation. (Section 23640.) 5)Allows a conviction for Section 23109 (speed contest) to be charged as an enhancement of a new criminal charge alleging a violation of that offense for five years after the original AB 897 Page 4 conviction. (Section 23109.5(a).) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: Government Code Section 68152 was amended in 2013 by AB 1352 (Levine, Stats. 2013, Ch. 274). According to this Committee's analysis, the purpose of that bill, sponsored by the Judicial Council, was to "revise[] trial court record retention requirements." According to the author, many court records today are kept for years beyond their useful period and, as a result, trial courts are forced to devote a substantial amount of time and resources to the storage and maintenance of unnecessary court records. According to a 2007 Judicial Council survey, court records were stored in 276 locations around the state, totaling almost 2 million linear feet. The costs associated with managing those records, as of 2006-07, were almost $22 million, with $15 million of that devoted to staff costs. The author believes that the revisions proposed by this bill will "allow courts to efficient and effectively manage court records and reduce unnecessary storage costs." Prior to AB 1352, the retention period was ten years for misdemeanors alleging a violation of Sections 23103, 23152, or 23153, and five years for Section 23109. The statute, Government Code Section 68152(e), read in relevant part: (4) Misdemeanor, except as otherwise specified: five years. (5) Misdemeanor alleging a violation of the Vehicle Code, except as otherwise specified: three years. (6) Misdemeanor alleging a violation of Section 23103, 23152, or 23153 of the Vehicle Code: 10 years. AB 897 Page 5 (7) Misdemeanor alleging a violation of Section 14601, 14601.1, 20002, 23104, 23105, 23109, or 23109.1 of the Vehicle Code: five years. Therefore, AB 1352 switched the retention periods for violations of Sections 23103 and 23109. As a result, current law provides for a five-year retention period for Section 23103 violations and a ten-year retention period for Section 23109 violations. There does not appear to be any clear reason for the switch. Until AB 1352 was enacted, the Government Code had long required a separate retention period for court files involving alleged violations of Vehicle Code Sections 23103, 23152, and 23153. At least as far back as AB 796 (Frazee, Stats. 1989, Ch. 1131), there has been a longer retention period for records alleging Section 23103, which was seven years according to the provisions of that bill. The seven-year period remained in place until SB 1694 (Torlakson, Stats. 2004, Ch. 550). SB 1694 increased the time period during which DUI-related convictions could be charged as prior offenses from seven years to ten years, and also increased the record retention period for those records from seven to ten years. In light of this history and the lack of any explanation for the switch in AB 1352, it appears that the change in that bill was likely the result of a drafting error. This conclusion is consistent with the opinion of the Court Executive Officer of the Marin County Superior Court. Writing in support of the bill, she notes that: I was a member of a working group of the Judicial Council of California that assisted Assemblymember Marc Levine in drafting language for AB 1352, which made significant improvements in the laws that govern retention of court records and clarified the statutes pertaining to the new ways that court records are produced and may be retained. During that drafting, an incorrect code section was AB 897 Page 6 inserted in the final version of the bill. After the bill was chaptered, I noticed the error and brought it to the attention of Judicial Council's Office of Governmental Affairs. On behalf of the trial courts, we will be most appreciative if this error can be corrected during this legislative session. It makes sense to restore the pre-AB 1352 record retention rules for the types of records at issue in this bill. Section 23109 governs speed contest violations. Retaining court records alleging 23109 violations for a period of five years makes sense in light of Section 23109.5, which provides that a sentencing judge may not strike a prior for sentencing purposes "[i]n any case charging a violation of subdivision (a) of Section 23109 and where the offense occurs within five years of one or more prior offenses." (Section 23109.5(a), italics added.) This sentencing statute suggests that it would be important to retain court records for five years in the event that the defendant was charged with committing a subsequent offense during that time period. Likewise, there is a valid reason for retaining court records alleging Section 23103 violations for ten years. Section 23103 governs reckless driving violations. For cases in which a defendant is charged with a violation of Section 23152 (DUI), but enters a plea negotiated with the prosecution to a violation of Section 23103 (reckless driving), the resulting conviction will count as a prior under Section 23103.5(c) for purposes of Sections 23540, 23546, 23550, 23560, 23566, 23622 (all of which provide for enhanced sentencing if a subsequent offense occurs within ten years of the prior). (Section 23622(a).) Further, if that defendant has been convicted of violating Section 23152 (DUI) or Section 23153 (DUI with bodily injury) within the past ten years, the court must order the defendant to participate in an alcohol treatment program as a condition of probation. Because subsequent offenses occurring within 10 years of a prior could result in enhanced sentences and required terms of AB 897 Page 7 probation, the court needs to retain court files regarding violations of Section 23103. (Section 23640.) Other violations of the Vehicle Code are similar or related to violations of 23103. For example, Section 23104 (reckless driving with bodily injury) and 23105 (sentencing for violations of 23104). Although Section 23105 is a sentencing statute, it is mentioned with Sections 23103 and 23104 in multiple code sections as convictions that are associated with DUI and/or reckless driving convictions. In order to ensure that all case files associated with reckless driving offense are maintained for ten years, the author may want to consider amending the bill in the future to include those two additional related code sections. Prior relevant legislation. AB 1352 (Levine), Chap. 274, Stats. 2013, revised trial court record retention requirements. AB 1926 (Evans), Chap. 167, Stats. 2010, sought to modernize the maintenance of trial court records by allowing courts to create, maintain, and preserve court records electronically or in any form of communication, if the form satisfies rules adopted by the Judicial Council. REGISTERED SUPPORT / OPPOSITION: Support Marin County Superior Court AB 897 Page 8 Opposition None on file Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334