BILL ANALYSIS                                                                                                                                                                                                    



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          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  








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          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. 


          











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          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  








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            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.








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               (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  








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               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  








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          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








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          Opposition


          None on file




          Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334