BILL ANALYSIS                                                                                                                                                                                                    



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          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