BILL ANALYSIS
AB 614
Page 1
Date of Hearing: April 21, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 614 (Miller) - As Introduced: February 25, 2009
SUMMARY : Creates a crime against any person who refuses to
submit to a chemical test as requested by an officer upon
reasonable suspicion that he or she is driving a motor vehicle
whilst under the influence (DUI) of drugs and or alcohol.
Specifically, this bill :
1)Provides that upon refusing to submit to a chemical test a
person shall be subject imprisonment in the county jail for
not less than 96 hours, at least 48 hours of which shall be
continuous, nor more than six months, and by a fine of not
less than $390, nor more than $1,000.
2)Punishes a person who refuses to submit to a chemical test
within 10 years of one or more separate violations by
imprisonment in the county jail for not less than 90 days nor
more than one year and by a fine of not less than $390 nor
more than $1,000. The person's privilege to operate a motor
vehicle shall be suspended by the Department of Motor Vehicles
(DMV). The court shall require the person to surrender the
driver's license.
EXISTING LAW :
1)Mandates that if a person refuses the officer's request to
submit to, or fails to complete, a chemical test or tests,
upon receipt of the officer's sworn statement that the officer
had reasonable cause to believe the person had been driving a
motor whilst under the influence of drugs and or alcohol, and
that the person had refused to submit to, or did not complete,
the test or tests after being requested by the officer, the
DMV shall do one of the following:
a) Suspend the person's privilege to operate a motor
vehicle for a period of one year.
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b) Revoke the person's privilege to operate a motor vehicle
for a period of two years if the refusal occurred within 10
years of either a separate violation of a driving under the
influence offense, or a suspension or revocation of the
person's privilege to operate a motor vehicle pursuant to
this section or for an offense that occurred on a separate
occasion.
c) Revoke the person's privilege to operate a motor vehicle
for a period of three years if the refusal occurred within
10 years of any of the following:
i) Two or more separate violations of reckless driving,
or of an offense involving driving under the influence of
drugs and or alcohol, or any combination thereof, that
resulted in convictions.
ii) Two or more suspensions or revocations of the
person's privilege to operate a motor vehicle for
offenses that occurred on separate occasions.
iii) Any combination of two or more of those convictions
or administrative suspensions or revocations. [Vehicle
Code Section 13353(a).]
2)States that a person who drives a motor vehicle is deemed to
have given his or her consent to chemical testing of his or
her blood or breath for the purpose of determining the
alcoholic and or drug content of his or her blood, if lawfully
arrested for an offense of DUI of drugs and or alcohol.
[Vehicle Code Sections 23612(a)(1)(A) and (B).]
3)Provides that testing shall be incidental to a lawful arrest
and administered at the direction of a peace officer having
reasonable cause to believe the person was DUI of drugs and or
alcohol. [Vehicle Code Section 12612(a)(1)(C).]
4)Requires persons to be told that his or her failure to submit
to, or the failure to complete, the required chemical testing
will result in a fine, mandatory imprisonment if the person is
convicted of a DUI, and: (i) the suspension of the person's
privilege to operate a motor vehicle for a period of one year,
(ii) the revocation of the person's privilege to operate a
motor vehicle for a period of two years if the refusal occurs
within 10 years of a separate violation of a DUI offense that
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resulted in a conviction, or if the person's privilege to
operate a motor vehicle has been suspended or revoked for an
offense that occurred on a separate occasion, or (iii) the
revocation of the person's privilege to operate a motor
vehicle for a period of three years if the refusal occurs
within 10 years of two or more separate violations of a DUI
offense or any combination thereof, that resulted in
convictions, or if the person's privilege to operate a motor
vehicle has been suspended or revoked two or more times for
offenses that occurred on separate occasions, or if there is
any combination of those convictions or administrative
suspensions or revocations. [Vehicle Code Section
23612(a)(1)(D).]
5)Gives persons who are lawfully arrested for DUI of an
alcoholic beverage, a choice of whether the test shall be of
his or her blood or breath and the officer shall advise the
person that he or she has that choice. If the person arrested
either is incapable, or states that he or she is incapable, of
completing the chosen test, the person shall submit to the
remaining test. If blood or breath tests, or both, are
unavailable, then a urine test shall be administered.
[Vehicle Code Section 23612(a)(2)(A).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 614 will
eliminate the evidentiary advantage a suspect gains by
refusing to submit to a chemical test upon his or her arrest
for DUI by making such a refusal punishable as a misdemeanor.
Currently, the law imposes a duty upon all such arrested
suspects to submit to a chemical test upon request of the
arresting office, but effectively does nothing to assist the
prosecution in obtaining a conviction in such cases were the
defendant denies access to the only reliable evidence of their
sobriety. This bill will eliminate that evidentiary advantage
by creating a new crime of DUI refusal that is similar, under
the law, to a DUI conviction with the same punishment as
specified under the DUI statutes. It will also make such a
refusal conviction prior-able in the same fashion as a DUI
conviction."
2)Background : According to information provided by the author,
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"There a growing trend in California for suspected drunk
drivers to completely refuse to participate in a DUI
investigation when they are the target of the investigation.
These individuals often will refuse to answer any questions
regarding their alcohol consumption to prevent any blood-level
extrapolations or burn-off calculations, they will refuse to
perform field sobriety tests (FSTs) to prevent the officer
from objectively evaluating their sobriety, and they will
refuse to submit to any chemical test to deny the officer the
only reliable evidence of their blood or breath alcohol
concentrations. This oftentimes leaves the officer with no
proof of the suspect's impairment other than the odor of
alcohol and existence of red, watery eyes. This creates an
obvious evidentiary advantage for the defendant where the
prosecution must prove actual impairment and/or a blood
alcohol level of .08% or more. Because law enforcement
agencies are reluctant to force a blood drawn in these refusal
cases for fear of civil liability, AB 614 will eliminate the
evidentiary advantage gained by a refusal by creating a new
crime of DUI refusal with the same consequences as a DUI
conviction."
3)Implied Consent Laws and Punishment : Implied consent laws
typically provide that any person who applies for a license to
drive on the state's public highways is deemed to have agreed
to take a blood-alcohol test if ever arrested on suspicion of
DUI. If the driver refuses, police are not permitted to force
compliance. The driver's license can, however, be revoked for
non-compliance by provision of an "implied consent penalty."
A driver arrested on suspicion of DUI thus faces a classic
Hobson's choice: if he or she agrees to take a blood-alcohol
test, he or she risks that an unfavorable result will aid in
his or her criminal conviction; if he or she refuses, his or
her license will be summarily revoked by the DMV for a period
of one year.
All 50 states have enacted implied consent laws. Revocation of
a driver's license under state implied consent laws is
considered a civil penalty, independent and separate from
criminal DUI sanctions, in almost all jurisdictions. While
most states have opted to encourage submission to
blood-alcohol testing by imposing civil penalties for refusal,
two states, Alaska and Nebraska, have made refusal to submit
to a chemical test when under arrest for DUI a separate
misdemeanor crime with penalties identical to those imposed
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under criminal DUI charges. [Zaleha, Alaska's Criminalization
of Refusal to Take a Breath Test: Is it a Permissible
Warrantless Search Under the Fourth Amendment? (1988) 5
Alaska L. Rev. 263.]
This bill imposes the same penalties for being convicted of a
DUI as a person who refuses to submit to a chemical test.
Thus, a person could be found not guilty of DUI, however, and
be subjected to the same penalties there under if he or she
refuses to submit to a chemical test. Does this punishment
fit the crime? Should refusing to submit to a chemical test
even be a crime?
Moreover, this bill surmises that persons who refuse to submit
to a chemical test are guilty of DUI. American jurisprudence
does not support such assumptions. In addition thereto, there
are many objective factors that peace officers take into
account when evaluating a person for DUI. It is under the
totality of the circumstances whether there is probable cause
to arrest someone for DUI. All of these circumstances are
before an implied consent requirement. Thus, if there is
enough evidence to make an arrest for DUI, there should be
enough evidence with or without a chemical test to obtain a
conviction.
4)Administrative Hearings within the DMV : The Administrative
Procedure Act is a general law relating to administrative
procedure in hearings and by established precedent such
regulations must yield to special statute where a variance
exists. Hearings before the DMV are therefore controlled by
Vehicle Code Section 13353 itself, and the DMV's hearing
procedures are specified within the Vehicle Code (Sections
14100 to 14112) rather than the Administrative Procedures Act
(Government Code Section 11500 et seq.). The Vehicle Code
provides "any formal hearing shall be conducted by the
director or by a referee or hearing board appointed by him
from officers or employees of the department." (Vehicle Code
Section 14107.) The Vehicle Code provisions describe a
comprehensive system for the conduct of formal and informal
hearings, and the application of the Administrative Procedure
Act is limited to those matters not covered by the Vehicle
Code provisions. (Vehicle Code Section 14112.) The
initiation of the hearing, its time and place, who shall
conduct the hearing, the admissible evidence, the decision
process, the time the decision shall take effect and the
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question of continuing jurisdiction are all resolved.
(Vehicle Code Section 14100 et seq.)
Vehicle Code Section 315, predecessor of Section 14107, provided
that all hearings should be conducted by the executive officer
or other officers or employees of the department designated by
him, and should be governed insofar as practical by the rules
of practice and procedure governing the trial of a civil
action. In 1947, the Legislature authorized the DMV to
conduct formal hearings, distinguished informal hearings, and
eliminated the requirement that judicial rules of civil
procedure should control (Vehicle Code Section 316), thus
substituting traditional administrative principals of due
process for judicial standards.
5)Due Process Required for DMV Administrative Hearings : "
'[Due] process,' unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and
circumstances." [Cafeteria Workers v. McElroy (1961) 367 U.S.
886, 895 ] "[Due] process is flexible and calls for such
procedural protections as the particular situation demands."
Morrissey v. Brewer (1972) 408 U.S. 471, 481.] Whether
administrative procedures are constitutionally sufficient
requires an analysis of the governmental and private interests
that are affected. [Arnett v. Kennedy (1974) 416 U.S. 134,
167-168.]
In Mackey v. Montrym, (1979) 443 U.S. 1, the Supreme Court
considered a due process challenge to a Massachusetts statute
mandating the administrative suspension of a driver's license
because of a driver's refusal to take a breath-analysis test
upon arrest for DUI of intoxicating liquor. The statute
provided for an immediate hearing upon request after surrender
of the license, and the question in the case was whether due
process required a pre-suspension hearing. (Id. at p. 10.)
The court stated that the determination of what process is due
requires identification and balancing of three distinct
factors: (a) the private interest affected by the official
action; (b) the risk of an erroneous deprivation of that
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
(c) the government's interest, including the function
involved and the financial and administrative burdens which
would be entailed by additional safeguards. [Ibid., citing
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Mathews v. Eldridge (1976) 424 U.S. 319, 335.]
As it weighed these factors, the Mackey court focused on the
public safety purpose of the administrative suspension statute
and noted that states have traditionally been granted great
leeway in adopting summary procedures to protect public health
and safety. The court reasoned that the state's paramount
interest in public safety was substantially served by the
summary suspension procedure for several reasons, including
its deterrent effect on drunk driving and the prompt removal
from the road of those who drink and drive. [Mackey, supra,
443 U.S. 1 at pp. 17-18.] Emphasizing that a hearing to
resolve any questions of fact was available immediately upon
suspension, the court concluded that the state's compelling
interest in highway safety justified the state in making a
summary suspension effective pending the outcome of that
hearing. (Id. at pp. 18-19.)
Driving is a privilege, not a right, and license revocation is a
civil, not a criminal, sanction. [Moomjian v. Zolin (1993) 12
Cal.App.4th 1606, 1612.] Thus, the determination of probable
cause does not need to be accompanied by the full panoply of
adversary safeguards such as counsel, confrontation,
cross-examination, and compulsory process for witnesses as is
the case with criminal proceedings. A license erroneously
suspended would cause personal inconvenience and possible
economic hardship. But however substantial such a property
interest may be, it is no more substantial than the right to
pretrial freedom in criminal cases because of the presumption
of innocence.
This bill allows a DMV hearing officer, through an
administrative hearing and upon a finding of probable cause
that a person refused a chemical test, to sentence that person
to prison or jail. The Due Process Clause of the Fifth
Amendment guarantees that "no person shall . . . be deprived
of life, liberty, or property, without due process of law."
(U.S. Const., 5th Amend.) Further, the hearing must be
"appropriate to the nature of the case." [Mullane v. Central
Hanover Bank & Trust Co. (1950) 339 U.S. 306, 313.] This bill
forgoes the procedural safeguards required by due process.
The fundamental right of liberty may not be seized from the
accused without a full panoply of adversary safeguards such as
counsel, confrontation, cross-examination, and compulsory
process for witnesses as is the case with criminal
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proceedings. Moreover, neither an administrative hearing
officer, nor the DMV have the power to impose criminal such
sanctions.
6)Double Jeopardy : The Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution provides that "no
person shall . . . be subject for the same offence to be twice
put in jeopardy of life or limb." (U.S. Const., 5th Amend.)
The clause has been interpreted many times by the Court as
protecting against three distinct abuses: a second
prosecution for the same offense after acquittal, a second
prosecution for the same offense after conviction, and
multiple punishments for the same offense. [United States v.
Halper (1989) 490 U.S. 435, 440.] In order for an individual
to invoke the protections of the proscriptions against double
jeopardy, he or she must prove three elements: the
punishments must have arisen out of the same act or offense,
both prosecutions must have occurred in separate proceedings
and must have resulted in separate punishments, and the
penalty imposed must have been a punishment and not remedial
in nature. [McCurdy, Talking Points: Double
Jeopardy/Administrative License Revocation (1995) 29
Prosecutor 21, p. 21.]
a) The Punishments Arise Out of the Same Act or Offense : A
punishment is said to arise out of the same act or offense
if, "to establish an essential element of an offense
charged in [the second] prosecution, the government will
prove conduct that constitutes an offense for which the
defendant has already been prosecuted." [Grady v. Corbin
(1990) 495 U.S. 508, 510.] In other words, if a person has
violated two distinct statutory provisions, double jeopardy
will not bar a subsequent prosecution under one, after a
conviction or acquittal under the other, if each separate
provision requires "proof of an additional fact [or
element] which the other provision does not." [Blockburger
v. United States (1932) 284 U.S. 299, 304.]
Double jeopardy may also bar a prosecution if one of the
offenses is a "lesser included" element of another offense.
[See Costarelli v. Commonwealth (1978) 373 N.E.2d 1183,
1188.] For example, in Costarelli v. Commonwealth, the
court found that since the unauthorized use of a motor
vehicle is a "lesser included crime of larceny of a motor
vehicle," a dismissal of the lesser charge by a previous
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court barred a subsequent prosecution for larceny. (Id. at
1187-88.) Similarly, double-jeopardy principles barred the
adjudication of unauthorized use. (Id. at 188-89.)
This bill punishes those who refuse to submit to a chemical
test in a DMV administrative hearing. Further, this bill
punishes refusal the same as a person convicted of DUI with
a special enhancement of refusing to submit to a chemical
test. Thus, refusing to submit to a chemical test is an
essential element to both crimes and is a lesser included
crime of DUI whilst failing to submit to a chemical test.
b) Both Prosecutions Occur in Separate Proceedings and
Result in Separate Punishments : A legislature may
authorize multiple punishments so long as it does so by
containing the punishments within the same proceeding.
[See Missouri v. Hunter (1983) 459 U.S. 359, 365.] Such
punishments, however, violate double jeopardy principles if
they are given in separate proceedings. [McCurdy, supra,
at 21.] Proceedings are deemed separate when both arise
from similar or related facts, but are subsequently
prosecuted in different courts and under different docket
numbers. [Halper, supra, 490 U.S. 435 at 437-38.]
This bill authorizes multiple punishments in two proceedings.
The first punishment may occur after a probable cause
finding in a DMV administrative proceeding, and a second
punishment may be applied after a conviction in a criminal
court.
c) The Penalty Imposed Is a Punishment and Is Not Remedial
in Nature : No party may be punished twice for the same
offense and, if a defendant is sentenced for a new
conviction on the same offense, prior punishment for such
an offense must be credited. [See North Carolina v. Pearce
(1969) 395 U.S. 711, 717.] If a sanction serves a remedial
purpose instead of punishment, however, double jeopardy
does not bar its application. (See Halper, supra, 490 U.S.
435, at 443.) Moreover, punishment can be either civil or
criminal in form. (Id. at 447.) A sanction, either
criminal or civil, constitutes punishment when it serves
the goals of punishment. (Id. at 448.) In United States
v. Halper, for example, the Court found that a civil
sanction of over $130,000 was a punishment since the
government incurred actual damages of only $585. [(1989)
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490 U.S. 435.] In United States ex rel. Marcus v. Hess,
however, a civil sanction of $315,000 was considered
remedial since "proceedings were designed to 'protect the
government from financial loss'-rather than to 'vindicate
public justice.' " [(1943) 317 U.S. 537, 539.]
In Halper, the Supreme Court held that the government may not
subject a citizen to a subsequent civil sanction, following
punishment in a criminal prosecution, unless the civil
sanction is remedial. [Halper, supra, 490 U.S. 435 at
448-49.] The Supreme Court based its holding on the idea
that a civil sanction is not solely remedial, but is also a
form of retribution or deterrence, especially where the
sanction is excessive in relation to its non-punitive
purpose. (Id. at 449.)
This bill applies the same penalties in both the
administrative and criminal proceedings, thus, both have
retributive purposes.
In conclusion, as written, this bill fails all three prongs
and violates double jeopardy.
7)Concerns about Prison and Jail Overcrowding and the Threat of
a Court-Ordered Population Cap : Given this bill creates a new
crime and additional punishments, there will likely be an
increase in the number of inmates incarcerated in state prison
for a longer term. This being the case, it is important to
raise the issue of prison overcrowding. The California Policy
Research Center (CPRC) recently issued a report on the status
of California's prisons. The report stated, "California has
the largest prison population of any state in the nation, with
more than 171,000 inmates in 33 adult prisons, and the state's
annual correctional spending, including jails and probation,
amounts to $8.92 billion. Despite the high cost of
corrections, fewer California prisoners participate in
relevant treatment programs than comparable states, and its
inmate-to-officer ratio is considerably higher. While the
nation's prisons average one correctional officer to every 4.5
inmates, the average California officer is responsible for 6.5
inmates. Although officer salaries are higher than average,
their ranks are spread dangerously thin and there is a severe
vacancy rate." (Petersilia, "Understanding California
Corrections", California Policy Research Center, May 2006).
California's prison population will likely exceed 180,000 by
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2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentive s for offenders
to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
[Little Hoover Commission Report, "Solving California's
Corrections Crisis: Time is Running Out", pg. 1, 2 (2007).]
According to the California Department of Corrections and
Rehabilitation, there are approximately 8,000 inmates serving
a sentence for lewd and lascivious acts on a child.
Incarcerating 8,000 more inmates for a term of
25-years-to-life would cripple the corrections system.
On February 9, 2009, a United States district court three-judge
panel issued a tentative ruling mandating the State of
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California to resolve chronic prison overcrowding. In the
tentative ruling, the judges state "[t]he evidence is
compelling that there is no relief other than a prisoner
release order that will remedy the unconstitutional prison
conditions." With prisons housing twice the population they
were built to accommodate, the prospect of early release of
inmates appears imminent unless the Legislature relieves the
current prison population. Given the untenable legal
disparity this bill proposes and the strength of existing law,
does it make sense to further contribute to the state's
mounting overcrowding problem?
8)Argument in Support : According to the District Attorney,
County of Riverside (the sponsor of this bill), "There is a
growing trend in California for suspected drunk drivers to
completely refuse to participate in an investigation when they
are suspected of DUI. These individuals often refuse to
answer any questions regarding their alcohol consumption to
prevent any blood-level or burn-off calculations. They refuse
to perform field sobriety tests to prevent law enforcement
from objectively evaluating their sobriety, and they refuse to
submit to a chemical test, which is the only reliable evidence
of their blood or breath alcohol concentrations. This often
times leaves the officer with no proof of the suspect's
impairment other than the odor of alcohol and personal
observations.
"Refusal of these tests creates an obvious evidentiary advantage
for the defendant where the prosecution must prove actual
impairment and/or a blood alcohol level of 0.08% or more. Law
enforcement agencies are reluctant to force a blood draw in
these refusal situations for fear of civil liability. AB 614
will eliminate the evidentiary advantage gained by a refusal,
by creating a new crime of DUI chemical test refusal,
equivalent to penalties for a breathalyzer refusal."
REGISTERED SUPPORT / OPPOSITION :
Support
District Attorney, County of Riverside (Sponsor)
Opposition
California Attorneys for Criminal Justice
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California DUI Lawyers Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744