BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1571


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          Date of Hearing:  March 15, 2016
          Counsel:               David Billingsley


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                      1571 (Lackey) - As Amended  February 23, 2016




          SUMMARY:   Requires the court to refer a driving under the  
          influence (DUI) first offender whose blood contained a  
          blood-alcohol concentration of 0.15% or more and a controlled  
          substance to a 9 month DUI program.  Also requires the court to  
          consider any blood-alcohol concentration in combination with the  
          presence of a controlled substance in the person's blood, as  
          defined, as a special factor for purposes of sentencing.   
          Specifically, this bill:  

          1)Requires the court to refer a first offender whose blood  
            contained a blood-alcohol concentration of 0.15% or more, and  
            a controlled substance, as defined under federal law, to a DUI  
            program of at least nine months, with at least 60 hours of  
            program activities. 

          2)Requires that enrollment in an approved DUI program take place  
            within 30 days of conviction. 

          3)Requires the county alcohol program administrator to  
            coordinate court referral and tracking documents with the  
            Department of Motor Vehicles and the State Department of  
            Health Care Services. 









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          4)Requires the court to consider a blood-alcohol concentration  
            of 0.08% or more, by weight, in combination with the presence  
            of a controlled substance in the person's blood, as defined  
            under federal law, as a factor that may justify enhancing the  
            penalties and determining conditions of probation.

          5)Requires a court to refer a person to a licensed program as a  
            condition of probation. 

          6)Requires the clerk of the court to also indicate the duration  
            of the treatment program ordered on court referral and  
            tracking documents.

          EXISTING LAW: 
           
          1)Requires the court to order a first DUI offender whose  
            blood-alcohol concentration was 0.20 percent or more, by  
            weight, or who refused to take a chemical test, to participate  
            for at least nine months or longer, as ordered by the court,  
            in a licensed program that consists of at least 60 hours of  
            program activities.  (Veh. Code § 23538, subd. (b)(2).)

          2)Requires the court to order a first DUI offender whose  
            blood-alcohol concentration was less than 0.20 percent, by  
            weight, to participate for at least three months or longer, as  
            ordered by the court, in a licensed program that consists of  
            at least 30 hours of program activities.  (Veh. Code § 23538,  
            subd. (b)(1).)

          3)Specifies that if a person is convicted of a violation of  
            Section DUI or DUI with injury, the court shall consider a  
            concentration of alcohol in the person's blood of 0.15 percent  
            or more, by weight, or the refusal of the person to take a  
            chemical test, as a special factor that may justify enhancing  
            the penalties in sentencing, in determining whether to grant  
            probation, and, if probation is granted, in determining  
            additional or enhanced terms and conditions of probation.   
            (Veh. Code § 23578.)

          4)States that the court shall also impose as a condition of  
            probation, upon conviction of a first DUI, that the driver  
            shall complete a DUI program, licensed as specified, in the  








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            driver's county of residence or employment, as designated by  
            the court.  (Veh. Code § 23538, subd. (b).)

          5)In lieu of the DUI education program, a court may impose, as a  
            condition of probation, that the person complete, subsequent  
            to the underlying conviction, a residential live in program  
            dealing with substance abuse, if the person consents and has  
            been accepted into that program. (Veh. Code, § 23598.)

          6)States that the court shall advise the person at the time of  
            sentencing that the driving privilege shall not be restored  
            until proof satisfactory to the department of successful  
            completion of a DUI program of the length required under this  
            code that is licensed, as specified, has been received in the  
            department's headquarters.  (Veh. Code § 23538, subd. (b)(3).)

          7)Requires the court to refer a first time DUI offender whose  
            concentration of alcohol in his or her blood was less than  
            0.20 percent, by weight, to participate for at least three  
            months or longer, as a condition of probation, in a licensed  
            program that consists of at least 30 hours of program  
            activities.  (Health & Saf. Code § 11837, subd. (c)(1).)

          8)Requires the court to order a first time DUI offender whose  
            concentration of alcohol in the person's blood was 0.20  
            percent or more, or the person refused to take a chemical  
            test, to participate, for at least nine months or longer, as  
            ordered by the court, in a licensed program that consists of  
            at least 60 hours of program activities, as a condition of  
            probation.  (Health & Saf. Code § 11837, subd. (c)(2).)

          9)Allows the State Department of Health Care Services to specify  
            in regulations the activities required to be provided in the  
            treatment of participants receiving nine months of licensed  
            program services. Health & Saf. Code § 11837, subd. (d).)

          10)Specifies that "probation" means "the suspension of the  
            imposition or execution of a sentence and the order of  
            conditional and revocable release in the community under the  
            supervision of a probation officer." (Pen. Code, § 1203(a).) 

          11)Specifies that "conditional sentence" means "the suspension  








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            of the imposition or execution of a sentence and the order of  
            revocable release in the community subject to conditions  
            established by the court without the supervision of a  
            probation officer." (Pen. Code, § 1203(a).)

          12)Provides that the court, in granting probation, may suspend  
            the imposing or the execution of the sentence and may direct  
            that the suspension may continue for a period of time not  
            exceeding the maximum possible term of the sentence, except as  
            specified, and upon those terms and conditions as it shall  
            determine. (Pen. Code, § 1203.1.)

          13)States that the court may impose and require any or all of  
            the terms of imprisonment, fine, and conditions, and other  
            reasonable conditions, as it may determine are fitting and  
            proper to the end that justice may be done and for the  
            rehabilitation of the probationer, and that should the  
            probationer violate any of the terms or conditions imposed by  
            the court in the matter, it shall have authority to modify and  
            change any and all the terms and conditions and to reimprison  
            the probationer in the county jail, as specified. (Pen. Code,  
            § 1203.1, subd. (j).)

          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "Drugged-driving  
            has seen a dramatic increase in the past several years.  
            According to the DMV's annual report of the DUI Management  
            Information System (MIS), the number of drug-involved crash  
            fatalities increased by 15.4% in 2012. Drug-involved  
            fatalities represent 28.7% of the total number of deaths  
            associated with car crashes. We should treat the issue of  
            drunk-and drugged-driving as a health issue rather than a  
            criminal one. DUI Treatment Programs include educational group  
            counseling sessions as well as individual interviews that  
            showcase the severity of mixing alcohol with drugs while  
            driving. 

          "Effective January 1st, 2014, California statute made it  
            explicitly clear that it is unlawful for a person to drive  








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            under the combined influence of drugs and alcohol. This bill  
            requires all first DUI offenders convicted with a  
            blood-alcohol concentration of .15 and above and a controlled  
            substance in their system to attend a 9 month program (Current  
            law requires 6 month). Furthermore, this bill allows the  
            courts to consider any blood-alcohol concentration in  
            combination with a controlled substance as special factor that  
            may justify enhancing the terms of a DUI treatment program. 

          "DUI Treatment Programs have been proven to significantly reduce  
            DUI recidivism for first and repeat offenders through sessions  
            that focus on alcohol and drug abuse. These programs are  
            affordable and in cases of financial hardship some or all fees  
            associated with the program can be waived. This bill narrowly  
            targets first-offenders and will serve as a deterrent for  
            anyone who might get behind the wheel while intoxicated under  
            a mixture of alcohol and drugs."

          2)Criminalizing the Otherwise Legal Use of Lawful Prescription  
            Medication:  This bill increases penalties for those  
            individuals with a specified amount of alcohol in their blood  
            and any amount of drugs as defined in the Federal Code. (21  
            U.S.C. § 812.)  That means individuals who have lawfully taken  
            prescription drugs, can find that behavior criminalized and  
            face increased penalties, even if the prescription medication  
            did not contribute to the impairment of their driving.

          Examples of drugs that are included in the Federal Schedules of  
            Controlled Substances which are commonly used in a lawful  
            manner are Xanax, Ativan, Ambien, anabolic steroids, Valium,  
            cough suppressants containing codeine (Robitussin AC), and  
            Tylenol with codeine.  
            (  http://www.deadiversion.usdoj.gov/schedules/  ,  
             http://www.drugs.com/schedule-4-drugs.html  )  

          Lawful consumption of the drugs listed above would result  
            increased penalties under this bill if any amount of the drug  
            was found in the individual's blood in conjunction with  
            specified alcohol levels.  As a result, this bill would  
            increase penalties even if the drug(s) contained in the  
            individual's blood does not increase the impairment level of  
            the individual to drive.  The increased penalties would result  








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            even if the effect of the drug had worn off, but the drug was  
            still contained in the individual's blood.

          3)The Effect of Drugs On an Individual's Ability to Drive is Not  
            Well Understood:  Research has established that there is a  
            close relationship between BAC level and impairment. Some  
            effects are detectable at very low BACs (e.g., .02 grams per  
            deciliter, or g/dL) and as BAC rises, the types and severity  
            of impairment increase. (Drug Impaired Driving Understanding  
            the Problem & Ways to Reduce It (2009), National Highway  
            Transportation Safety Administration, pp. 2-3.)

          The behavioral effects of other drugs are not as well understood  
            compared to the behavioral effects of alcohol. Certain  
            generalizations can be made: high doses generally have a  
            larger effect than small doses; well-learned tasks are less  
            affected than novel tasks; and certain variables, such as  
            prior exposure to a drug, can either reduce or accentuate  
            expected effects, depending on circumstances. However, the  
            ability to predict an individual's performance at a specific  
            dosage of drugs other than alcohol is limited. Most  
            psychoactive drugs are chemically complex molecules whose  
            absorption, action, and elimination from the body are  
            difficult to predict. Further, there are considerable  
            differences between individuals with regard to the rates with  
            which these processes occur. (Drug Impaired Driving  
            Understanding the Problem & Ways to Reduce It (2009), National  
            Highway Transportation Safety Administration, pp. 2-3.)

          The presence of a drug in a person's blood sample might indicate  
            a drug that was affecting the individual at the time the  
            sample was taken, or it might indicate a drug that was  
            consumed at some point in the past and was no longer affecting  
            the individual at the time the sample was taken.  The length  
            of time that a drug or its metabolite is present in a given  
            biological sample is often called its detection time. This may  
            vary depending on the dose (amount), route of administration  
            (injected, inhaled etc.) and elimination rate (how long it  
            takes the body to get rid of the substance).  The presence of  
            a drug metabolite in a biological fluid may or may not reflect  
            consumption of the drug recently enough to impair driving  
            performance. (Drug Toxicology for Prosecutors, American  








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            Prosecutors Research Institute (2004), p. 8.)

          There are additional factors that complicate the determination  
            of the effects on drugs on driving impairment.  There are  
            individual differences in absorption, distribution, and  
            metabolism. Some individuals will show evidence of impairment  
            at drug concentrations that are not associated with impairment  
            in others.   Wide ranges of drug concentrations in different  
            individuals have been associated with equivalent levels of  
            impairment.  In certain instances drugs can be detected in the  
            blood because of accumulation.  Blood levels of some drugs or  
            their metabolites may accumulate with repeated administrations  
            if the time-course of elimination is insufficient.  (Drug  
            Impaired Driving Understanding the Problem & Ways to Reduce It  
            (2009), National Highway Transportation Safety Administration,  
            p. 3.)  Because of these factors, specific drug concentration  
            levels cannot be reliably equated with effects on driver  
            performance. 

          4)Increasing Penalties in Situations Where There is Not  
            Necessarily a Corresponding Increase in the Seriousness of the  
            Criminal Behavior: Generally, under California criminal law,  
            an individual only faces increased penalties for conduct that  
            made the nature of the crime more serious.  When evaluating  
            the seriousness of a DUI, the most common measure is the  
            impairment level of the driver.  The higher the impairment of  
            the driver, the bigger danger the driver represents to the  
            public.  Existing law mandates increased penalties in the form  
            of an extended (nine month) DUI program for individuals  
            convicted when their blood is two and a half times (.20) the  
            legal limit, or more. (Veh. Code § 23538, subd. (b)(1).)  That  
            increase in penalty is consistent with an increased  
            seriousness of the criminal behavior because there is a strong  
            correlation between higher levels of blood alcohol level and  
            the impairment of drivers.  As discussed above, the presence  
            of a controlled substance in an individual's blood does not  
            necessarily reflect a corresponding impairment in the  
            individual's ability to drive.

          This bill seeks to increase penalties by imposing a  
            significantly longer DUI school for first time DUI offenders  
            with any level of controlled substance in their blood stream.   








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            "Any level" of a controlled substance includes extremely low  
            levels of drugs that do not impair ability to drive.  "Any  
            level" of a controlled substance includes drugs consumed at  
            some point in the past that are no longer affecting the  
            individual at the time the blood sample is taken.  As a  
            result, this bill doesn't require any showing that the  
            presence of the controlled substance contributed to impairment  
            beyond the impairment caused by the amount of alcohol in the  
            individual's system.  This bill mandates a punishment for  
            behavior that does not necessarily correspond to a higher  
            level of criminality. 

          5)Reducing Judicial Discretion:  Courts have the power under  
            existing law to increase punishments in situations when the  
            combined use of alcohol and drugs warrant such an increase.   
            Courts have broad general discretion to fashion and impose  
            additional probation conditions that are particularized to the  
            defendant. (People v. Smith (2007) 152, Cal.App.4th 1245,  
            1249.) Courts may impose any "reasonable conditions" necessary  
            to secure justice, make amends to society and individuals  
            injured by the defendant's unlawful conduct, and assist the  
            "reformation and rehabilitation of the probationer." (Pen.  
            Code, § 1203.1.)  A condition of probation is valid if it is  
            reasonably related to the offense and aimed at deterring such  
            misconduct in the future. (People v. Carbajal (1995) 10  
            Cal.4th 1114, 1121.)

          If the facts demonstrate that the type or level of drugs in the  
            individual's system increased the dangerousness of conduct  
            resulting in a DUI, the court can require that defendant to  
            attend a longer DUI program.  Under existing law, the court  
            could also impose additional probation conditions such as  
            substance abuse treatment or testing for drugs, as long as the  
            conditions were reasonably related to the offense. 

          6)Requiring an Individual to Enroll in DUI Education Program  
            Within 30 Days of Conviction May Create Additional Work for  
            Courts:  This bill requires that enrollment in a DUI education  
            program for a first time DUI offender, take place within 30  
            days of the conviction.  That requirement may create  
            additional workload for the courts.  









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          Under existing law, DMV suspends an individual's driver's  
            license for six months upon conviction of a first DUI (Veh.  
            Code, § 13352.).  In order to get full license privileges  
            back, the individual must complete the DUI education program.   
            If the individual wants to get a restricted license, allowing  
            them to drive to work during the suspension period, the person  
            must be enrolled in the DUI education program.  Existing law  
            provides incentives and penalties to enter and complete the  
            program in order to drive.  In addition, the DUI education  
            program is a condition of probation.  So failure to enroll and  
            complete the program exposes the individual to additional  
            sanctions by the court.  Arguably, those are sufficient  
            incentives for an individual to enroll and complete the DUI  
            program.

          Under this bill, if an individual fails to enroll within 30 days  
            he will have violated the law.  If the individual then  
            attempts to enroll in the program beyond 30 days, it is likely  
            they will not be allowed to enroll by a DUI education program  
            provider.  That individual will then have to schedule a court  
            date and make an appearance in front of the judge to be  
            re-referred to the DUI program.  This may create additional  
            volume for the courts.

          7)Argument in Support:  According to The California Police  
            Chiefs Association, "The California Police Chiefs Association  
            is pleased to support AB 1571, which updates the California  
            DUI treatment program structure to reflect the prevalence of  
            concurrent drug and alcohol use by California drivers. In  
            addition to other changes, AB 1571 allows a judge to require  
            all first DUI offenders with a BAC of .08 to .15 and a  
            controlled substance in their system to attend a 6-month  
            program and allows a judge to require all first DUI offenders  
            with a BAC above .15 and a controlled substance in their  
            system to attend a 9-month program. 

          "The National Highway Traffic Safety Administration's (NHTSA's)  
            2013-2014 National Roadside Survey found that more than 22  
            percent of drivers tested positive for illegal, prescription,  
            or over-the-counter drugs. In fact, the National Roadside  
            Survey of Alcohol and Drug Use by Drivers, a nationally  
            representative survey by NHTSA, found that in 2007,  








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            approximately one in eight nighttime weekend drivers tested  
            positive for illicit drugs. Equally disturbing are the 2011  
            results from the National Survey on Drug Use and Health  
            indicating that 9.9 million Americans 12 or older reported  
            driving under the influence of illicit drugs in the past year.  
            Using a health-based treatment approach, AB 1571 will reduce  
            this upward trend. 

          "DUI Treatment programs have been proven to significantly reduce  
            DUI recidivism for first and repeat offenders. AB 1571 will  
            significantly reduce the number of repeat concurrent use  
            offenders in California. Thank you for your leadership on this  
            matter."

          8)Argument in Opposition:  According to Drug Policy Alliance,  
            "First, while we do not advocate for anyone to drive while  
            under the influence of alcohol or drugs, no one should receive  
            sentencing enhancements or additional terms of probation based  
            on arbitrary data. Not enough is known about the effects of  
            drugs, or the combination of drugs and alcohol, on driver  
            safety. Because of the paucity of information on this topic,  
            the National Highway Transportation Safety Administration  
            (NHTSA) noted in 2015 report that "specific drug concentration  
            levels cannot be reliably equated with a specific degree of  
            driver impairment." The report explained that, unlike alcohol  
            - where there is a strong correlation between blood alcohol  
            levels and the degree of driver impairment - there is a poor  
            correlation between the presence of drugs in the blood and the  
            impairing effects of the drugs. This can be explained, in  
            part, by variations in the level of drug use over time, the  
            metabolism of the user, and the user's sensitivity or  
            tolerance to a drug. Moreover, the presence of a drug may  
            persist in the blood long after the impairment effects have  
            worn off. Thus, requiring courts to consider the presence of  
            any alcohol in combination with a drug in the blood as a  
            special factor will unnecessarily result in harsher  
            punishments for more people who are no less safe to drive.

          "Second, drug testing, like many other forensic disciplines, is  
                                                                       highly technical and imperfect. There are a host of problems  
            with drug testing techniques and analyses, including: the  
            substantial risk of false positive test results; false  








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            negative test results; specimen contamination; and chain of  
            custody, storage, and re-testing issues.  As the toxicological  
            literature makes clear, "a number of routinely prescribed  
            medications have been associated with triggering  
            false-positive results."  In the context of marijuana, for  
            example, research demonstrates that drug tests may return  
            false positives for THC. Studies have found that false  
            positive THC tests results have been associated with the  
            passive ingestion (i.e. second-hand) of marijuana smoke.   
            Similarly, other studies have demonstrated that heavy  
            marijuana users who abstain from marijuana use for at least a  
            week have returned positive THC tests.  In addition, the use  
            of some pharmaceutical drugs, like Marinol and Sativex,  
            typically returns positive THC test results.  It, therefore,  
            does not make sense to increase a person's sentence or terms  
            and conditions of parole based on test results that are  
            unreliable and often incorrect." 

          9)Prior Legislation: 

             a)   SB 780 (Emmerson), of the 2011-2012 Legislative Session,  
               would have increased minimum county jail to 180 days upon  
               conviction of a third DUI.  SB 780 was held in the Senate  
               Public Safety Committee.

             b)   AB 1487 (Berryhill), of the 2007-2008 Legislative  
               Session, would have decreased the blood alcohol content  
               (BAC) of a person convicted of DUI for referral to a  
               lengthier driving under the influence program, as  
               specified.  AB 1487 died in the Senate Public Safety  
               Committee,

             c)   AB 1352 (Liu), Chapter 164, Statutes of 2005, requires a  
               first time DUI offender with blood alcohol content .20 or  
               more to attend a 9 month DUI educational program.

          REGISTERED SUPPORT / OPPOSITION:

          Support

          California Association of DUI Treatment Programs (Sponsor)
          Alcohol Drug Council








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          California Police Chiefs Association
          California Peace Officers Association
          California Narcotic Officers' Association
          Foundation for Advancing Alcohol Responsibility
          Health Net
          Lifesafer of Northern California
          We Save Lives
          Zona Seca

          3 individuals

          Opposition
          
          American Civil Liberties Union of California
          California Attorneys for Criminal Justice
          California Public Defenders Association
          Drug Policy Alliance
          
          Analysis Prepared  
          by:              David Billingsley / PUB. S. / (916) 319-3744