BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1046       Hearing Date:    March 29, 2016    
          
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          |Author:    |Hill                                                 |
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          |Version:   |March 17, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
          |           |                                                     |
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             Subject:  Driving Under the Influence:  Ignition Interlock  
 
                                       Device



          HISTORY

          Source:   Author

          Prior Legislation:SB 61 (Hill) - Chaptered 350, Stats. 2015
                        SB 55 (Hill) - held in Assembly Appropriations  
          (2013)
                          AB 520 (Ammiano) - Chapter 657, Stats. 2011
                        SB 598 (Huff) - Chapter 193, Stats. 2009
                          AB 91 (Feuer) - Chapter 217, Stats. 2009
                          SB 1190 (Oropeza) - Chapter 392, Stats. 2008 
                          SB 1361 (Correa) - Vetoed (2008)
                          SB 1388 (Torlakson) - Chapter 404, Stats. 2008
                          AB 2784 (Feuer) - until August 28, 2008 version
                          SB 177 (Migden) - did not move (2007)
                          AB 4 (Bogh) - held in Assembly Appropriations  
          (2005)
                          AB 979 (Runner) - Chapter 646, Stats. of 2005
                          AB 638 (Longville) - prior to 7/2/2003 amends 
                        died on Concurrence (2003)
                                     AB 1026 (Levine) - failed Senate  
          Public Safety (2003)
                                     AB 762 (Torlakson) - Chapter 756,  







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          Stats. of 1998


          Support:  Advocates for Highway and Auto Safety; Alcohol  
                    Justice; Association of Orange County Deputy Sheriffs;  
                    California Statewide Law Enforcement Association;  
                    Crime Victims United California; Fraternal Order of  
                    Police; Long Beach Police Officers Association; Los  
                    Angeles City Attorney; Mothers Against Drunk Driving;  
                    Peace Officers Research Association of California;  
                    Sacramento County Deputy Sheriffs' Association; San  
                    Marcos Prevention Coalition

          Opposition:California Attorneys for Criminal Justice; California  
                    Public Defenders Association

                                                


          

          
          

          PURPOSE

          The purpose of this bill is to require a DUI offender to install  
          an ignition interlock device (IID) on his or her vehicle for a  
          specified period of time in order to get a restricted license or  
          to reinstate his or her license and to remove the required  
          suspension time before a person can get a restricted license.

          Existing law provides it is unlawful for any person who is under  
          the influence of any alcoholic beverage or drug, or under the  
          combined influence of any alcoholic beverage and drug, to drive  
          a vehicle.  (Vehicle Code  23152(a).)  

           Existing law provides that it is unlawful for any person, while  
          having 0.08 percent or more, by weight, of alcohol in his or her  
          blood to drive a vehicle.  (Vehicle Code  23152(b).)

          Existing law provides that a person who is convicted of a first  
          DUI is subject to the following penalties when given probation:
                 possible 48 hours to 6 months in jail;








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                 $390 to $1,000 fine plus 250% penalty assessments;
                 completion of a 3-month treatment program or a 9-month  
               program if the BAC was .20% or more;
                 6 month license suspension or 10 month suspension if  
               9-month program is ordered; and
                 Restricted license may be sought upon proof of  
               enrollment or completion of program, proof of financial  
               responsibility and payment of fees.  However, the court may  
               disallow the restricted license.  (Vehicle Code  13352  
               (a)(1); 13352.1; 13352.4; 23538(a)(3).)
            
          Existing law provides that a person who is convicted of a first  
          DUI with injury is subject to the following penalties:
                 16 months, 2 or 3 years in state prison or 90 days to 1  
               year in county jail;
                 $390 to $1,000 fine plus 250% penalty assessments; and
                 1 year driver's license suspension.

            Or, when probation is given:
                 5 days to one year in jail;
                 $390 to $1,000 fine plus 250% penalty assessments;
                 1 year license suspension;
                 3 month treatment program or a 9-month program if the  
               BAC was .20% or more; and 
                 the additional penalties that apply to a first DUI  
               without injury.  (Vehicle Code  23554.)
           
           Existing law provides that the Department of Motor Vehicles  
          shall advise the person convicted of a second DUI that after  
          completion of 12 months of the suspension period, the person may  
          apply for a restricted license subject to the following  
          conditions:
                 Proof of enrollment in an 18 month or 30 month  
               driving-under- the influence program.
                 The person agrees to continued satisfactory  
               participation in the program.
                 The person submits proof of installation of an ignition  
               interlock device.
                 The person provides proof of insurance.
                 The person pays all fees.  (Vehicle Code  13352  
               (a)(3).)
           
           Existing law provides that the Department of Motor Vehicles  
          shall advise the person convicted of a third DUI that after  








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          completion of 12 months of the suspension period, the person may  
          apply for a restricted license subject to the following  
          conditions:

                 Proof of enrollment in an 18 month or 30 month  
               driving-under-the influence program.
                 The person agrees to continued satisfactory  
               participation in the program.
                 The person submits proof of installation of an ignition  
               interlock device.
                 The person provides proof of insurance.
                 The person pays all fees.  (Vehicle Code  13352  
               (a)(5).)

          Existing law provides that if a first-offender DUI is found to  
          have a blood concentration of .20% BAC or above or who refused  
          to take a chemical test, the court shall refer the offender to  
          participate in a 9-month licensed program.  (Vehicle Code   
          23538 (b)(2).)

          Existing law provides that a first-time DUI offender sentenced  
          to a 9-month program because of a high BAC or a refusal shall  
          have their license suspended for 10 months.  The law further  
          provides that their license may not be reinstated until the  
          person gives proof of insurance and proof of completion of the  
          required program.  (Vehicle Code  13352.1.)

          Existing law provides that a person convicted of a first-time  
          DUI may apply for a restricted license for driving to and from  
          work and to and from a driver-under-influence program if  
          specified requirements are met, paying all applicable fees,  
          submitting proof of insurance and proof of participation in a  
          program.  (Vehicle Code  13352.4.)

          Existing law provides that a second or subsequent DUI offender  
          can get his or her license reinstated earlier if he or she  
          agrees to install an Ignition Interlock Device (IID) along with  
          his or her enrollment in the required program, proof of  
          insurance and payment of specified fees. (Vehicle Code   
          13352(a)(3)(B); (a)(4) (B); (a)(5)(C); (a)(6)(B); (a)(7)(B)&(C))

          Existing law creates an IID pilot project in Alameda, Los  
          Angeles, Sacramento and Tulare Counties requiring a person  
          convicted of a DUI to install an IID for 5 months upon a first  








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          offense, 12 months for a second offense, 24 months for a 3rd  
          offense and for 36 months for a 4th or subsequent offense.  
          (Vehicle Code  23700)

          Existing law requires DMV to report to the Legislature regarding  
          the effectiveness of the IID pilot project to reduce the number  
          of first-time violations and repeat DUI offenses. (Vehicle Code  
           23701)

          This bill extends the existing pilot project until July 1, 2017.

          This bill provides that beginning July 1, 2017 all DUI offenders  
          will be required to install an IID for a specified period of  
          time in order to have their license reinstated.

          This bill removes the time a person must have a suspended  
          license before he or she is able to apply for a restricted  
          license.

          This bill would allow a court to order a person convicted of a  
          "wet reckless" to install an ignition interlock device on his or  
          her car.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                          
          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 








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          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.










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          COMMENTS

          1.  Need for This Bill

          According to the author:
          
               A recent report by Mothers Against Drunk Driving (MADD)  
               found that IIDs in California have prevented over 1  
               million instances of drinking and driving since 2010:  
                http://www.madd.org/local-offices/ca/documents/Californi 
               a-Report.pdf  

               According to DMV data, during the last 30 years, over  
               50,000 people have died in California because of drunk  
               drivers and over 1 million have been injured. Under  
               current law, installation of IIDs is optional for DUI  
               offenders.  A four county pilot program is currently  
               underway in Alameda, Los Angeles, Sacramento, and  
               Tulare counties requiring IIDs for any convicted drunk  
               driver (AB 91 of 2009). SB 61 (Hill, 2015) temporarily  
               continued the 4-county pilot program so the legislature  
               has time to review the DMV report in 2016 and determine  
               the best way to move forward. 

               Currently, 25 states have laws requiring ignition  
               interlocks for all convicted drunk drivers. According  
               to the Centers for Disease Control and Prevention  
               (CDC), requiring or highly incentivizing interlocks for  
               all convicted drunk drivers reduces drunk driving  
               recidivism by 67 percent. The CDC recommends Ignition  
               interlocks for everyone convicted of DWI, even for  
               first offenders.

               Since New Mexico's interlock law was implemented in  
               2005, drunk driving fatalities are down by 38 percent.  
               Since Arizona and Louisiana implemented their interlock  
               law in 2007, drunk driving deaths have decreased by 43  
               and 35 percent, respectively. In Oregon, as a result of  
               2008 interlock law, DUI deaths are down 42 percent.









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               About half of California DUI offenders drive illegally  
               after their arrest and choose not to participate in  
               treatment or IID programs.  SB 1046 will seek to bring  
               more offenders into the legal system by creating an  
               incentive program allowing offenders to drive soon  
               after their arrest if they show proof of IID  
               installation. The legislation will also continue &  
               expand assistance for low-income offenders. 

               The bill is consistent with reports from the National  
               Transportation Safety Board and the U.S. Centers for  
               Disease and Prevention which both recommend that all  
               people convicted of drunk driving should have ignition  
               interlock devices installed in their cars.  The  
               National Highway Traffic Safety Administration found  
               that "ignition interlocks, when appropriately used,  
               prevent alcohol-impaired driving by DWI offenders,  
               resulting in increased safety for all roadway users."
               






          2.  The Pilot Project

          In 2009, AB 91 (Feuer) created an IID pilot project in four  
          counties which mandates the use of an IID for all DUI offenders.  
           DMV will issue a soon regarding the effectiveness of the pilot  
          project in reducing the number of first-time violations and  
          repeat offenses in the specified counties.

          The rationale for a pilot project was to see what impact a  
          mandatory IID program has on recidivism in California.  While  
          the impact of IID has been studied elsewhere, with mixed  
          results, the comparisons are not perfect because while some of  
          the other states began mandating IID at the same time they  
          strengthened other sanctions, California has had a complex group  
          of sanctions including high fines, jail time, licensing  
          sanctions, mandatory drinker-driver treatment programs and  
          optional IID in place since the mid-1980's with sanctions being  
          evaluated, changed and strengthened on an ongoing basis since.   
          The thought was that with a pilot project, DMV can evaluate how  








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          best a mandatory IID system should work in California.  By  
          evaluating four counties, the counties without the mandatory  
          programs act like a control group for the researchers at DMV.   
          Evaluating how the DUI sanctions work is something DMV  
          researchers have been doing with great success since 1990. DMV's  
          reports have helped inform the Legislature on where changes  
          needed to be made and have helped reduce recidivism in  
          California.   

          Last year, SB 61 (Hill) extended the pilot project until January  
          1, 2016.

          3.  Results From the Pilot Project

          In January of 2015, DMV released their report on the pilot  
          project entitled "General Deterrent Evaluation of the Ignition  
          Interlock Pilot Program in California."  The report found that  
          even though "[d]uring the pilot period, IID installation rates  
          increased dramatically in the pilot counties to include 42.4% of  
          all DUI offenders combined, compared to 2.1% during the  
          pre-pilot period" the study found that "there were no  
          differences in the license-based rates of DUI convictions in the  
          pilot counties among first, second, and third-or-more DUI  
          offenders during the pilot program as compared to the pre-pilot  
          program." (California DMV, "General Deterrent Evaluation of the  
          Ignition Interlock Pilot Program in California" January 2015  
          Executive Summary p. vii)  Thus the pilot projects showed no  
          "general deterrent" effect of requiring the installation of an  
          IID by all offenders.  Requiring the installation did not result  
          in fewer DUI's in the pilot counties. 

          By the January 2015 due date, DMV was not able to gather the  
          appropriate data to do an additional report on specific  
          deterrent but is finishing up that additional report. While  
          general deterrent shows whether the threat of an IID will keep a  
          person from committing a DUI the first time, a report on a  
          specific deterrent will show whether the installation of an IID  
          by a DUI offender will keep that person from becoming a repeat  
          offender.  Both are relevant goals in deciding what sanctions  
          shall be imposed on a DUI offender.

          Because the report of the pilot projects showed no general  
          deterrent and it is not yet known what the results on specific  
          deterrent will show, DMV recommends "that subsequent legislative  








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          action take into consideration the findings of the specific  
          deterrence evaluation of this pilot program." (CA DMV id at p.5)  
           This report has not been released yet but is expected to be  
          released sometime soon.

          4.  Rates of Installation in the Pilot Counties
          
          As the author notes in his background, the installation rates  
          for IID in this mandatory program increases significantly in the  
          pilot counties from a pre pilot average of 2.1% to an average of  
          42.4% installation rates.  Non-pilot counties also saw a small  
          increase in installation during this time frame, from 2.1% to  
          4.3% because of a incentivized voluntary installation program  
          that began at the same time as the pilot.  While the increase is  
          significant, once could ask that in a mandatory program why the  
          installation is not higher.  A person with a DUI cannot get his  
          or her license back until he or she has shown that he or she has  
          installed an IID.  First offenders make up most of the DUI  
          offenders and most first time DUI offenders can get their  
          license back within 6 months and many are eligible for a  
          restricted license sooner.  The installation rate may indicate a  
          significant number of offenders who have not gone back to get a  
          valid license.  They may not be driving or they may be driving  
          without a valid license and insurance.

          5.  Mandatory Installation of IID

          This bill would require any person convicted of a DUI to install  
          an ignition interlock device on all the cars he or she owns for  
          a specified period of time.  A person convicted of a first  
          offense has a six month suspension and the IID must be installed  
          for six months.  A person with a second offense has a two-year  
          suspension and the IID must be installed for 12 months.  A  
          person with a third offense has a three year suspension and the  
          IID must be installed for 24 months.  A person with a fourth or  
          subsequent offense has a four year suspension and the ID must be  
          installed for 36 months.

          For repeat offenders, the mandatory IID time frame is shorter  
          than the time for the suspended license.  As discussed more  
          below, this bill allows the IID to be installed immediately  
          after conviction, maybe as soon as an administrative suspension.  
           It is unclear how this works.  A person with a 2nd DUI  
          immediately installs the IID and does the mandatory time of 12  








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          months but would then still have an additional 12 months to  
          serve out their suspension.  If he or she has complied with the  
          12 months can he or she remove the IID and still drive on a  
          restricted license?  

          6.  Removal of Hard Suspension
          
          Under existing law, a person convicted of a DUI must wait a  
          period of time before they can apply to DMV for a restricted  
          license.  Since 2005, all licensing actions have gone through  
          DMV not the courts.  This bill would remove that mandatory  
          suspension and allow a person to immediately get an ignition  
          interlock device if he or she installs an IID and meets the  
          other requirements.  It may also allow the installation during  
          any time of and any administrative suspension since it allows  
          the installation without "any suspension."

          According to the latest DMV report on the DUI Management  
          Information System, DUI arrests in 2011 decreased by 8.0%  
          following decreases of 6.1% in 2010 and 2.9% in 2009.   
                                                            (California DMV 2013 Annual Report of the California DUI  
          Management Information System p. iii)

          The report further indicated that the 1-year recidivism rates  
          for all first DUI offenders decreased to the lowest level seen  
          in the past 21years.  The DUI re-offense rate for first  
          offenders arrested in 2010 was 46.1% lower than the re-offense  
          rate for first offenders arrested in 1990.  The 1-year  
          re-offense rate for second DUI offenders continued to remain at  
          the lowest level in the past 21years. And recidivism decreased  
          from 9.7% in 1990 to 5.2% in 2010, a 46.4% relative decrease for  
          second DUI offenders. (Id atp. 33)

          The 2013 and prior reports have all indicated a link between the  
          decline in DUIs and the mandatory suspension of a license  
          because a significant decline occurred after a mandatory  
          administrative suspension (APS) was indicated:

               The re-offense rates of second offenders remain higher  
               than those of first offenders across all years  
               Previous DUI -MIS reports suggested that, while many  
               factors may be associated with the overall decline in  
               DUI incidents for both first and second offenders, the  
               reduction may largely be attributed to the  








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               implementation of APS suspensions in 1990.  An  
               evaluation (Rogers, 1997) of the California APS Law  
               documents recidivism reductions of up to 21.1% for  
               first offenders and 19.5% for repeat offenders,  
               attributable to the law.  (Id 37)

          The Committee may wish to consider whether it is good policy to  
          eliminate a sanction that has been studies and appears to reduce  
          the recidivism rate in California and replace it with a sanction  
          that the first study has indicated has no general deterrence and  
          the data has yet to be finally analyzed as to specific  
          deterrence.

          7.  Reduced Fine if Interlock Installed Early

          If a person installs an interlock during his or her hard  
          suspension as discussed above, this bill provides that the court  
          shall reduce his or her fine by $500.

          8.  Payment for IID
          
          This bill purports to set up a sliding scale for payment of an  
          IID but it is not clear how it would work.

          First it is not clear who has the authority to verify whether  
          the IID installers are actually following the sliding scale set  
          up. 

          The sliding scale language in the bill describes the provider  
          absorbing portions of "the cost of the ignition interlock  
          device" for those that meet specified income limits.  It does  
          not specify what is included in the cost of the device.  The  
          device is one cost but the monitoring costs are additional.  Are  
          these included?

          The bill says that the cost of the IID can only be raised equal  
          to the Consumer Price Index but does not indicate where that  
          price shall currently start.

          9.  What if You Don't Own a Car?
          
          This bill provides that a driver can indicate he or she does not  
          own a vehicle any longer in order to not be subject to the IID  
          requirement.  However, that request must be made 30 days after  








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          the DMV notifies the person of the requirement.  Thirty days may  
          not be enough time for an offender to realize the true cost of  
          the fines, fees, programs and now IID costs associated with a  
          DUI.  An offender may at first think they can keep their car and  
          not drive it during the time of their license only to realize  
          later that they need to sell it or the cost is just not worth it  
          when they are facing the cost of the DUI.  Is the 30 days  
          realistic for someone with a 2-year or more license suspension?

          10.  Support

          According to Advocates for Highway Safety:

               Drunk driving is a deadly and costly threat to  
               California families. While nationally drunk driving  
               fatalities decreased 2.5 percent in 2013, California  
               experienced a 6 percent increase from the previous year  
               (National Highway Traffic Safety Administration  
               (NHTSA)), and statistics for 2014 alcohol involved  
               crashes show that fatalities remain high. In 2014,  
               1,053 people were needlessly killed in alcohol-related  
               crashes on California's streets and roads, accounting  
               for over one quarter (29 percent) of all traffic  
               fatalities. Moreover, drunk driving is costly.  
               California taxpayers were burdened by $5.4 billion in  
               drunk driving related costs in 2013 (MADD). Clearly,  
               this is a serious and expensive problem on California's  
               roads which requires urgent attention and the effective  
               solution of IIDs. 
               California's current law allows optional use of IIDs  
               statewide, but only about 20 percent of convicted drunk  
               drivers who have a choice of installing an IID or  
               driving on a limited restricted license opt for IID  
               installation. The state also continues to maintain a  
               pilot program requiring the use of IIDs for all  
               offenders in Alameda, Los Angeles, Sacramento, and  
               Tulare counties. Data from the California Department of  
               Motor Vehicle (DMV) shows a higher rate of IID use in  
               the pilot program counties.1 A recent MADD report on  
               the effectiveness of IIDs in California noted that  
               since the California pilot program began, IIDs have  
               "prevented vehicles from starting over 1 million times  
               because alcohol was detected on the driver's breath."2  
               According to the MADD report, IIDs prevent over 1,900  








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               drunk driving incidents per month in California.

          11.  Opposition
          
          The California Attorneys for Criminal Justice oppose this bill  
          stating:

               Currently, four counties are experimenting with  
               mandatory IID in EVERY case even if a judge makes an  
               alternative finding.  

               There are sample studies supporting the effectiveness  
               of IID use and greater compliance when ordered on a  
               case-by-case basis or included in a negotiated plea.   
               SB 1046 simply imposes the 4-county experiment  
               statewide.  Thus far DMV has not concluded that such a  
               blanket approach is more effective than current law in  
               54 counties. 

               Furthermore, California law incentivizes the  
               installation of IID's for second time offenders with  
               significant success.  SB 1046 conflicts with this  
               proven approach by mandating its usage for every  
               first-time offenders. 

               For years DMV statistics have shown that, under current  
               law and using best practices, very few drivers reoffend  
               with the first six months, which is the period covered  
               by SB 1046.  As such, a statewide mandate seems to be  
               inconsistent with empirical evidence. 


               A 54-county expansion will result in an exponential  
               increase in business for IID companies and there has  
               been limited oversight of these companies, especially  
               those who plan to be rewarded with significant increase  
               in revenues as a result of SB 1046.  This artificial  
               spike in profits should be contemplated only after a  
               thorough assessment of the practices of the IID  
               businesses in California.  This is especially critical  
               when DMV studies do support such a mandatory approach.   


               Lastly, the four-county experiment of eliminating  








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               judicial discretion has not been fully analyzed to  
               determine whether this is the most appropriate public  
               policy. We anticipate the DMV report will address many  
               of these concerns and the Legislature can explore the  
               department's findings to determine appropriate next  
               steps. Until then, any action on this issue is  
               premature. 





                                      -- END -