BILL ANALYSIS Ó
AB 1571
Page 1
Date of Hearing: April 19, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1571 (Lackey) - As Amended March 28, 2016
As Proposed to be Amended in Committee
SUMMARY: Requires the court to consider a blood alcohol
concentration (BAC) of .08 or more, in combination with the
presence of specified drugs, excluding marijuana and drugs
prescribed by a physician, as an aggravating factor that may
justify enhancing the terms and conditions of probation, for
first time driving under the influence (DUI) offenders.
Specifically, this bill:
1)Requires the court to consider a BAC of 0.08 percent or more,
in combination with the presence of a Schedule I or II
controlled substance, as defined the United States Code,
except marijuana, as specified, or a controlled substance
prescribed by a licensed physician or dentist, as an
aggravating factor in sentencing for first time DUI offenders.
2)Specifies that the mandatory consideration of such an
aggravating factor, may justify enhancing the terms and
conditions of probation with regards to participation in
specified DUI programs.
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3)Requires that enrollment in an approved DUI program for first
offenders take place within 30 days of conviction.
4)Allows the court to grant an extension of no longer than 30
days upon the request of the program provider.
5)Allows an extension to be requested or granted by telephone or
by other electronic means.
6)Requires a court to refer a person with a second or subsequent
DUI conviction to a program, as specified, as a condition of
probation.
7)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.)
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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
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
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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
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
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driving.
"Effective January 1st, 2014, California statute made it
explicitly clear that it is unlawful for a person to drive
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)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
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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
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.
3)Requiring Consideration of an Aggravating Factor 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
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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. 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 requires the court
to consider specified drug consumption as an aggravating
factor in sentencing even if there was no corresponding
impairment in the individual's ability to drive.
4)Existing 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.
5)Requiring an Individual to Enroll in DUI Education Program
Specified Time from 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 (possibly extended to 60 days). 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.
This bill contains a provision that would allow the court to
extend the 30 day deadline to 60 days and allows requests to
be made by a treatment provider through electronic or
telephonic means. The procedure to extend the deadline is not
consistent with the standard judicial process.
Generally, when a court makes decisions and issues orders, the
case on which the action is being taken is on calendar, the
parties, or their legal representatives are present, and the
hearing is open to the public. This framework is in place to
ensure that parties have notice and an opportunity to be
heard. It also ensures that one party is not communicating
with the judge about the case outside presence of the other
party. The framework ensures that the judicial process is
conducted in an open and public forum.
This bill would be a significant departure from the normal
judicial process by having a 3rd party (program provider)
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communicate informally to obtain an extension. Is it
anticipated that the program provider will be calling up the
judge responsible for the case to ask permission to extend?
Are the parties required to be notified? If the timeframe is
extended, who is responsible for notifying the defendant? It
is not clear that this bill provides a workable procedure to
extend the deadline to enroll in the DUI program.
6)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,
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."
7)Argument in Opposition: According to Drug Policy Alliance,
"First, while we do not advocate for anyone to drive while
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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
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
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unreliable and often incorrect.
"Finally, the March 28, 2016 amendments to AB 1571
inappropriately tie California penalties to federal laws, made
by the U.S. Congress, despite inconsistencies between
California and federal laws. The bill now cross-references
federal code sections that define marijuana and other drugs as
Schedule I and Schedule II substances. Yet, because our state
legislature has not always concurred with the conclusions of
the U.S. Congress, the California code definitions for
Schedule I and Schedule II substances do not mirror the
definitions in the federal code. Furthermore, through direct
democracy ballot measures, or future legislation, the
differences may become even more pronounced."
8)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)
A Better Citizen Foundation
Alcohol Drug Council
Alcohol Justice
California Association of Code Enforcement Officers
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California Association of Highway Patrolmen
California College and University Police Chiefs Association
California Police Chiefs Association
California Peace Officers Association
California Narcotic Officers' Association
Fresno County Hispanic Commission on Alcohol & Drug Abuse
Services
Foundation for Advancing Alcohol Responsibility
Health Net
Lifesafer of Northern California
Janus of Santa Cruz
Los Angeles County Professional Peace Officers Association
Los Angeles Deputy Sheriffs
Los Angeles Police Protective League
Riverside Sheriffs Association
Safety Center
We Save Lives
Zona Seca
16 private 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
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