BILL ANALYSIS Ó
AB 2232
Page 1
Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2232
(Obernolte) - As Introduced February 18, 2016
PROPOSED CONSENT
SUBJECT: COURT RECORDS: MISDEMEANORS
KEY ISSUE: IN ORDER TO REDUCE THE COURT'S COSTS IN MANAGING
COURT RECORDS AND TO ADDRESS A NON-CONTROVERSIAL AND INADVERTENT
DRAFTING ERROR, SHOULD THE RETENTION PERIOD FOR CERTAIN
VEHICULAR MISDEMEANOR RECORDS BE REVISED?
SYNOPSIS
Trial courts retain court records for different time periods
based on types of cases involved and pursuant to statutes
requiring records to be retained for specified periods. After
the required time period has elapsed, the court is authorized to
destroy the record. For most misdemeanor cases, courts are
required to retain the records for five years; for other
misdemeanors, the court is required to retain the records for
one to ten years, depending on the nature of the crime. In
2013, the Legislature enacted AB 1352 (Levine, Chap. 274, Stats.
2013), which revised and reorganized the retention period rules
for various court records. However, according to the Judicial
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Council, the sponsor of this bill, AB 1352 had several drafting
errors regarding the retention period for certain misdemeanors,
specifically those involving violations of the Vehicle Code.
This bill seeks to correct those errors with the following
changes to retention rules: (1) Decreasing the retention period
for misdemeanor speed contests conviction records from 10 to 5
years; and (2) Increasing the retention period for misdemeanor
reckless driving conviction records from 5 to 10 years. This
bill has no opposition.
SUMMARY: Changes the time period that a court retains records
for certain vehicular misdemeanors. Specifically, this bill:
1)Decreases the time period that a court retains a record for
misdemeanor speed contest convictions from 10 to 5 years.
2)Increases the time period that a court retains a record for
misdemeanor reckless driving convictions from 5 to 10 years.
EXISTING LAW:
1)Provides the manner in which the court may destroy records
after specified retention periods for civil actions, small
claims, criminal actions, juvenile proceedings, appellate
matters of the superior court, and other matters. (Government
Code Section 68152. Unless stated otherwise, all further
statutory references are to the Government Code.)
a) For misdemeanors, the court retains the record for 5
years, unless provided otherwise. (Section 68152 (c)(7).)
b) For a misdemeanor where a person drives a vehicle upon a
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highway in willful or wanton disregard for the safety of
persons or property, the court retains the record for 5
years. (Ibid.)
c) For a misdemeanor involving a motor vehicle speed
contest, or repeated prior offense within five years, the
court retains the record for 10 years. (Ibid.)
d) For a misdemeanor involving a person under the influence
of any alcoholic beverage or any drug to drive a vehicle,
the court retains the record for 10 years. (Ibid.)
2)Requires a defendant who has been convicted of a violation of
Vehicle Code Section 23152 (DUI) or Section 23153 (DUI with
bodily injury) within the past 10 years to participate in an
alcohol program as a condition of probation. (Vehicle Code
Section 23640.)
3)Allows a conviction for Vehicle Code 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 conviction. (Vehicle Code Section 23109.5
(a).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: According to the author, this bill corrects a number
of drafting errors in the schedule for retaining and destroying
court records. In 2013, the Legislature enacted AB 1352
(Levine, Chap. 274, Stats. 2013), which modified the number of
years that various court records must be retained. According to
Judicial Council, the sponsor of this bill, the original intent
behind AB 1352 was to change and bring the timelines for
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retaining court records for particular violations in line with
other similar violations.
However, according to Judicial Council, there was a drafting
error. Under the current framework, most misdemeanor records
are retained for five years unless the misdemeanor is expressly
specified under a different schedule. In most instances, if the
misdemeanor is expressly specified, the court retains the record
for ten years. The drafting error came about when the Vehicle
Code Sections for speed contests (Sections 23109-23109.5) were
expressly specified - putting those records on the ten year
schedule. Conversely, the Vehicle Code Section for reckless
driving (Section 23103) was not expressly mentioned. Thus, the
default schedule of five years applied.
In support of Judicial Council's contention that the change in
law was in error, this Committee received a comment attesting to
that fact from the Court Executive Officer of the Marin County
Superior Court (for a prior analysis of a nearly identical
bill):
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
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.
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To correct this alleged error, this bill swaps the retention
period for misdemeanor speed contest records and misdemeanor
reckless driving records. In other words, this bill requires
the court to retain misdemeanor speed contest records for five
years and misdemeanor reckless driving violations for ten years.
Although it is unclear how the drafting error came to be, this
bill would essentially allow the Council to destroy some records
sooner (e.g. court records for misdemeanor speed racing), and
maintain other records longer (e.g. court records for reckless
driving).
Prior Legislation Helped Streamline Record Retention Process.
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. It was anticipated that it would be far
cheaper to maintain electronic records as opposed to paper
copies. Despite the legislative authority to maintain and
preserve court records electronically, trial courts continue to
devote a substantial amount of time and resources to storage and
maintenance of unnecessary court records.
Is The Court Destroying Records that Might Be Useful? At a time
when our courts are facing significant fiscal challenges to its
operations, it seems appropriate to limit the kinds of records
that courts must retain, particularly if the records are not
useful.
Theoretically, courts retain records to preserve the public's
"desire to keep a watchful eye on the workings of public
agencies." (Nixon v. Warner Communications (1977) 435 U.S. 589,
597-98.) Practically speaking, however, attorneys may rely on
court records in their practice of law. For example, a
prosecutor might look at an older conviction to determine
whether a defendant should be charged with a repeat offense; or
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a public defender could use a prior conviction to impeach a
witness.
Although this Committee is unaware of whether there has been an
increase in misdemeanor speed contest convictions, it does not
seem appropriate for the court to hold onto these records
longer, even if there was an increase in these crimes. It is
true that a prior speed contest conviction within five years of
a new offense could be used as an enhancement; however, the
court's default schedule of holding the record for five years
would provide a prosecutor sufficient time to uncover the record
in the instance the prosecutor was looking for a prior
conviction.
Or Conversely, Should the Court Expend Resources to Retain Court
Records that Might Not Actually Be Useful? As previously
mentioned, it seems appropriate to limit the kinds of records
the court must retain, particularly if the records are not
useful. Although this bill shortens the schedule for
misdemeanor speed contests, this bill, in effect, lengthens the
schedule for misdemeanor reckless driving.
Judicial Council suggests that increasing the time period for
records involving misdemeanor reckless driving mirrors the time
period for records in misdemeanor driving-under-the-influence
cases. Although this reason alone may be sufficient to extend
the schedule for reckless driving records, it is still unclear
to this Committee whether retaining those records is an
appropriate use of the court's resources. Be that as it may,
increasing the time period may be helpful for litigants and
attorneys, especially if incidents of reckless driving result in
bodily harm.
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REGISTERED SUPPORT / OPPOSITION:
Support
Judicial Council (sponsor)
Opposition
None on file
Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334