BILL ANALYSIS Ó
AB 2367
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Date of Hearing: March 29, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2367 (Cooley) - As Amended March 28, 2016
SUMMARY: Authorizes the court to order a person convicted of a
Driving Under the Influence (DUI) offense with one of more DUI
priors within 10 years, to enroll, participate in, and
successfully complete, a qualified "24/7 Sobriety" monitoring
program, as defined, as a condition of probation. Specifically,
this bill:
1)Specifies that the court may order a person convicted of a
violation of DUI or DUI with injury to enroll, participate in,
and successfully complete, a qualified "24/7 Sobriety"
monitoring program as a condition of probation, if the program
is available and deemed appropriate, and the person has one or
more prior convictions for a violation of DUI or DUI with
injury within a 10 year period.
2)States that a "24/7 Sobriety program" requires a person in the
program to abstain from alcohol and requires the person to be
subject to frequent testing with certain but modest punishment
for violations.
3)Requires a "24/7 Sobriety program" to be evidence-based and
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approved by the Department of Motor Vehicles (DMV).
4)States that persons ordered into a "24/7 Sobriety program" may
also be required to participate in other
driving-under-the-influence programs as provided law.
5)Requires a "24/7 Sobriety program" to be licensed, as
specified.
6)Specifies that an "evidence-based program" means a program
that satisfies the requirements of at least two of the
following:
a) The program is included in the federal registry of
evidence-based programs and practices;
b) The program has been reported in a peer-reviewed journal
as having positive effects on the primary targeted outcome;
or
c) The program has been documented as effective by informed
experts and other sources.
7)Specifies that the program may monitor alcohol through one or
more of the following modalities, as the court deems
appropriate:
a) Breath testing, twice a day;
b) Continuous transdermal alcohol monitoring in cases of
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hardship; and
c) Random blood, breath, urine, or oral fluid testing.
8)States that testing locations that provide the best ability to
sanction a violation as close in time as reasonably feasible
to the occurrence of the violation should be given preference.
9)Requires each person to pay "24/7 Sobriety program" costs
commensurate with the person's ability to pay, as specified.
10)Requires the court, in establishing reporting requirements,
to consult with the county probation department.
11)Requires DMV to study and report to the Legislature by
January 1, 2020, on the success of the 24/7 Sobriety program
in reducing the driving-under-the-influence recidivism rate in
counties where it is used.
12)Provides that this section shall remain in effect only until
January 1, 2021, and as of that date is repealed, unless a
later enacted statute, that is enacted before January 1, 2021,
deletes or extends that date.
EXISTING LAW:
1)States that if the court grants probation to a person punished
as a second DUI within 10 years, in addition to any other
terms and conditions imposed by the court, the court shall
impose as conditions of probation that the person be confined
in county jail and fined under either of the following:
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a) For at least 10 days, but not more than one year, and
pay a fine of at least three hundred ninety dollars ($390),
but not more than one thousand dollars ($1,000); or (Veh.
Code, § 23142, subd. (a)(1)(A).)
b) For at least 96 hours, but not more than one year, and
pay a fine of at least three hundred ninety dollars ($390),
but not more than one thousand dollars ($1,000). A sentence
of 96 hours of confinement shall be served in two
increments consisting of a continuous 48 hours each. The
two 48-hour increments may be served nonconsecutively.
(Veh. Code, § 23142, subd. (a)(1)(b).)
2)Requires the person's privilege to operate a motor vehicle to
be suspended by DMV as specified. (Veh. Code, § 23142, subd.
(a)(2).)
3)States that the court shall require the person convicted of a
second DUI to do either of the following:
a) Enroll and participate, for at least 18 months
subsequent to the date of the underlying violation, in a
driving-under-the-influence program licensed, as specified,
as designated by the court; or (Veh. Code, § 23142, subd.
(b)(1).)
b) Enroll and participate, for at least 30 months
subsequent to the date of the underlying violation and in a
manner satisfactory to the court, in a
driving-under-the-influence program licensed, as specified.
(Veh. Code, § 23142, subd. (b)(2).)
4)Requires the court to advise the person at the time of
sentencing that the driving privilege shall not be restored
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until proof satisfactory to the DMV of successful completion
of a driving-under-the-influence program of the length
required has been received in the department's headquarters.
(Veh. Code, § 23142, subd. (c).)
5)States that when considering the circumstances taken as a
whole, the court determines that the person punished with a
second DUI would present a traffic safety or public safety
risk if authorized to operate a motor vehicle during the
period of suspension imposed, as specified, the court may
disallow the issuance of a restricted driver's license. (Veh.
Code, § 23142, subd. (d).)
6)Provides that if the court grants probation to any person
punished for a third DUI in 10 years, in addition any other
terms and conditions imposed by the court, the court shall
impose as conditions of probation that the person be confined
in the county jail for at least 120 days but not more than one
year and pay a fine of at least three hundred ninety dollars
($390) but not more than one thousand dollars ($1,000). (Veh.
Code, § 23148, subd. (a)(1).)
7)Requires the person's privilege to operate a motor vehicle to
be revoked by DMV, as specified. (Veh. Code, § 23148, subd.
(a)(2).)
8)Specifies that if the court grants probation to any person
punished with a third DUI, the court may order as a condition
of probation that the person participate, for at least 30
months subsequent to the underlying conviction and in a manner
satisfactory to the court, in a driving-under-the-influence
program licensed, as specified. (Veh. Code, § 23148, subd.
(b).)
9)Provides that if the court orders a program of at least 30
months, the court as an alternative to the minimum term of
imprisonment for a third DUI, the court shall impose as a
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condition of probation under this subdivision that the person
be confined in the county jail for at least 30 days but not
more than one year. (Veh. Code, § 23148, subd. (b).
10)Specifies that unless the court has imposed a longer program,
the court shall impose as a condition of probation on a third
DUI, that the person, subsequent to the date of the current
violation, enroll and participate, for at least 18 months, in
a driving-under-the-influence program licensed, as specified.
(Veh. Code, § 23148, subd. (c).)
11)States that any person who has previously completed a
12-month or 18-month program shall not be eligible for
referral, as specified, unless a 30-month licensed
driving-under-the-influence program is not available for
referral in the county of the person's residence or
employment. (Veh. Code, § 23148, subd. (c).)
12)Requires the court to advise the person at the time of
sentencing on a third DUI that the driving privilege may not
be restored until the person provides proof satisfactory to
the department of successful completion of a
driving-under-the-influence program of the length required.
(Veh. Code, § 23148, subd. (d).)
13)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.)
14)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).)
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15)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).)
16)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).)
17)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).)
18)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).)
19)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).)
20)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).)
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21)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).)
22)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).)
23)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.)
24)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, that amends may be
made to society for the breach of the law, for any injury done
to any person resulting from that breach, and generally and
specifically for the reformation and 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 within the limitations of the penalty of the
public offense involved. (Pen. Code, § 1203.1, subd. (j).)
25)Specifies that the defendant shall not be released from
custody under his or her own recognizance until the defendant
files a signed release agreement which includes the
defendant's promise to obey all reasonable conditions imposed
by the court or magistrate. (Pen. Code, § 1318, subd. (a)(2).)
FISCAL EFFECT: Unknown
COMMENTS:
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1)Author's Statement: According to the author, "In California,
forty percent of all traffic-related fatalities involve
alcohol-this is higher than the rate nationwide. Critically,
nearly one-third of those convicted for driving under the
influence (DUI) re-offend.
"In an effort to add to the toolkit of options available to
judges, AB 2367 authorizes a court to order a person convicted
of multiple DUIs to successfully complete a qualified '24/7
Sobriety' monitoring program as a condition of their probation
or release.
"24/7 Sobriety programs require individuals to abstain from
alcohol for normally 90-180 days and are subject to frequent
testing. If they test positive for alcohol use, there are
swift, certain and modest sanctions-typically a day or two in
jail.
"24/7 Sobriety began as a pilot program in South Dakota in 2005
and required those convicted of alcohol-related offenses to
take twice-a-day breathalyzer tests or wear a continuous
alcohol monitoring bracelet. After a five-county pilot
project, the program grew to include more jurisdictions and
offenses. By the end of 2013, studies found that the total
number of repeat driving under the influence arrests in
counties operating the program fell by twelve percent, and the
total number of arrests for domestic violence dropped by nine
percent. Subsequently, 24/7 sobriety programs have been
implemented in several additional states. In addition,
Congress recently approved additional federal grant money for
startup and administrative costs of a 24/7 program."
2)Fixing America's Surface Transportation (FAST) Act: In
December of 2015, President Obama signed FAST Act, a
comprehensive highway bill. Part of the FAST Act provided
incentive grants for states to use 24/7 sobriety programs.
The FAST Act also laid out the federal criteria for 24/7
sobriety programs.
Under the FAST Act, a 24/7 Sobriety Program must:
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a) Require an individual who plead guilty or was convicted
of driving under the influence of alcohol or drugs to
totally abstain from alcohol or drugs for a period of time;
and
b) Require the individual to be subject to testing for
alcohol or drugs as follows:
i) at least twice per day; or
ii) by continuous transdermal alcohol monitoring via an
electronic monitoring device; or
iii) by an alternate method with the concurrence of the
Secretary of Transportation.
Those criteria are codified in 23 U.S.C. 405.
This bill defines 24/7 sobriety programs consistently with the
federal criteria.
3)Courts General Power to Impose Conditions of Probation:
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 valid condition must be reasonably related
to the offense and aimed at deterring such misconduct in the
future. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
4)Courts Are Already Using Alcohol and Drug Monitoring in
Conjunction with Probation: Courts are already imposing
conditions of probation which limit or prohibit the use of
alcohol or other drugs. They are imposing such condition
under their existing discretion to fashion reasonable
conditions related to the defendant's criminal conduct and
rehabilitative needs. Courts can utilize programs provided
through their county probation department, private companies,
or non-profit organizations. One private company which is
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already providing services that are consistent with 24/7
sobriety programs is Leaders in Community Alternatives (LCA).
LCA operates in Northern and Southern California. LCA
provides a range of supervision services for individuals on
probation or pretrial release. LCA's services include
continuous alcohol monitoring and testing for controlled
substances. Continuous alcohol monitoring is a form alcohol
monitoring which is consistent with the 24/7 sobriety program
mentioned in this bill. Courts are currently using alcohol
monitoring through LCA or similar programs without specific
authorization from the Legislature through the court's general
power to impose probation conditions related to the offense
for which the defendant was convicted.
5)Evidence Based Practices: Evidence based practice is the use
of systematic decision-making processes or provision of
services which have been shown, through available scientific
evidence, to consistently improve measurable outcomes. Instead
of tradition, gut reaction or single observations as the basis
for making decisions, evidence based practice relies on
collected data.
( https://depts.washington.edu/pbhjp/evidence-based-practice-ins
titute/what-evidence-based-practice )
Evidence based treatments are interventions which have
scientific findings to demonstrate their effectiveness or
efficacy in improving outcomes. Treatments are often placed
along a continuum of support based on the rigorousness and
amount of supporting research ranging from treatments which
have strong support to those which are untested to those which
have produced negative outcomes. Data sources used to make
these evidence determinations include randomized experiments,
which compare treatment with a control or placebo group or
compare the treatment with another already established
treatment; and single case design experiments which compare an
individual subject's baseline with their response to
treatment. (Id.)
One component of this bill is a study requirement. This bill
directs Department of Motor Vehicles to prepare a study the
use of 24/7 sobriety programs to be delivered by January 1,
2020. The study would gather data from across the state and
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provide analysis as to whether 24/7 sobriety programs are
effective in California from the standpoint of evidence based
practices.
6)Argument in Support: According to Keith Humphrey, Ph.D.,
"During my time as Senior Policy Advisor in the White House
Office of National Drug Control Policy, the Obama
Administration endorsed 24/7 Sobriety as an evidence-based
method of decreasing incarceration while at the same time
reducing substance abuse and keeping the public safe. As you
no doubt know, many California correction facilities are
overcrowded in part because many individuals are incarcerated
for alcohol-fueled crimes (including but certainly not limited
to drunk driving). The 24/7 Sobriety program gives police,
judges and communities a different way to handle such
offenders that is humane, effective and reduces crowding in
correctional facilities."
7)Argument in Opposition: According to Legal Services for
Prisoners with Children, "We believe that 24/7 Sobriety
program contemplated by AB 2367 would not only fail to address
the public safety hazard caused by intoxicated driving, but
would actually create more problems than it solves by leading
to increased incarceration. Existing law already provides
stiff penalties, including fines, imprisonment, and the
suspension of one's drivers' license, for driving under the
influence of alcohol. There is no evidence to suggest that
increased criminal penalties would have any deterrent effect
on those who would consider driving under the influence.
"Furthermore, the zero-tolerance approach of the 24/7 Sobriety
program flies in the face of medical science which identifies
alcoholism as a disease. There can never be an effective law
enforcement solution to a medical problem. Instead of passing
ever-more punitive laws in order to punish people struggling
with alcoholism. California should put resources into public
education and voluntary drug and alcohol treatment programs."
8)Prior Legislation: AB 1832 (Bermudez), of the 2005-2006
Legislative Session, would have made legislative findings and
declarations concerning the usefulness of continuous remote
alcohol monitoring systems. AB 1832 was vetoed by the
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Governor.
REGISTERED SUPPORT / OPPOSITION:
Support
Alcohol Justice
Automobile Club of Southern California
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers Association
Intoximeters
Florida Association of DUI Programs
Los Angeles County Professional Peace Officers Association
Los Angeles Deputy Sheriffs Association
Los Angeles Police Protective League
Riverside Sheriffs Association
We Save Lives
2 private individuals
Opposition
Legal Services for Prisoners with Children
California Attorneys for Criminal Justice
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744