BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1443 (Huffman) 3
As Amended June 23, 2010
Hearing date: June 29, 2010
Vehicle Code
MK:mc
VEHICLES: DRIVING UNDER THE INFLUENCE:
REPEAT OFFENDERS
HISTORY
Source: Author
Prior Legislation: SB 895 (Huff) - Chapter 30, Statutes 2010
SB 598 (Huff) - Chapter 193, Statutes 2009
AB 91 (Feuer) - Chapter 217, Statutes 2009
SB 1190 (Oropeza) - Chapter 392, Statutes 2008
SB 1361 (Correa) - vetoed 2008
SB 1388 (Torlakson) - Chapter 404, Statutes 2008
AB 2784 (Feuer) - until August 28, 2008 version
SB 177 (Migden) - did not move 2007
AB 4 (Bogh) - held Assembly Appropriations 2005
AB 979 (Runner) - Chapter 646, Statutes of 2005
AB 638 (Longville) - prior to 7/2/03 amends; died
on Concurrence 2003
SB 1694 (Torlakson) - Chapter 550, Statutes 2004
SB 132 (Battin) - held on Assembly Appropriations
Suspense 2004
AB 1026 (Levine) - failed Senate Public Safety 2003
SB
1757 (Battin) - 2001-2002, held in Assembly Appropriations
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AB 1078 (Jackson) - Chapter 849,
Statutes 2001
AB 762 (Torlakson) - Chapter 756, Statutes of 1998
AB 130 (Battin) - Chapter 901,
Statutes 1997
AB 2240 (Battin) - failed Sen.
Criminal Procedure 1996
Support: California Association of Highway Patrolmen; California
State Sheriffs' Association; Crime Victims United;
Peace Officers Research Association; San Bernardino
County Sheriff; California Academy of Physician
Assistants; Marin County Board of Supervisors; Sonoma
County District Attorney; Marin County District
Attorney; an individual
Opposition:California DUI Lawyers Association; California
Attorneys for Criminal Justice; Taxpayers for Improving
Public Safety; American Civil Liberties Union
Assembly Floor Vote: Not Applicable
KEY ISSUES
SHOULD THE DEPARTMENT OF MOTOR VEHICLES (DMV) REVOKE THE LICENSE
FROM A PERSON WHO HAS BEEN CONVICTED FOR A THIRD DUI?
SHOULD A PERSON WHOSE LICENSE IS REVOKED BE ABLE TO SEEK AN ORDER
FROM THE COURT TO HAVE THE LICENSE REINSTATED AFTER FIVE YEARS?
SHOULD A PERSON WHO HAS HAD A FOURTH DUI HAVE HIS OR HER LICENSE
PERMANENTLY REVOKED?
SHOULD A PERSON WHOSE LICENSE HAS BEEN REVOKED BE PROHIBITED FROM
REGISTERING A VEHICLE?
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PURPOSE
The purpose of this bill is to require the permanent revocation
of a person's driver's license after a third DUI, with an
ability to seek a restoration of the license after 5 years and
to provide for a permanent revocation after the fourth DUI.
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;
$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.
As of July 1, 2010, in the Counties of Alameda, Los
Angeles, Sacramento, and Tulare installation of an ignition
interlock device for 5 months is required. (Vehicle Code
13352 (a)(1); 13352.1; 13352.4; 23538(a)(3); 23700.)
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;
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$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 if a first-offender DUI is found to
have a blood concentration of .15% BAC or above or who refused
to take a chemical test, the court shall refer the offender to
participate in a nine-month licensed program. (Vehicle Code
23538 (b)(2).)
Existing law provides that a first-time DUI offender sentenced
to a nine-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 person who is convicted of a second
DUI within seven years shall be punished by imprisonment in the
county jail for 90 days to one year and/or a fine of $390 to
$1,000. If the person is granted probation, he or she is
subject to the following:
96 hours to 1 year in county jail;
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$390 to $1,000 fine plus 190% penalty assessments;
restricted license for driving to and from work and treatment
program; and
18 or 30 month treatment program.
As of July 1, 2010, if convicted in the Counties of Alameda,
Los Angeles, Sacramento, and Tulare a person shall install an
ignition interlock device for a period of 12 months. (Vehicle
Code 23540; 23542; 23700.)
Existing law provides that additional penalties also apply to a
person convicted of a second DUI within seven years including:
Restitution fine of $100-$1,000. (Penal Code 1202.4.)
Mandatory impound of the vehicle for up to 30 days if the
offense occurred within 5 years of a prior DUI unless
"interest of justice" exception is found (defendant must be
registered owner of vehicle used in the offense). (Vehicle
Code 23594.)
The court may order installation of an ignition interlock
device as a condition of probation. (Vehicle Code 23575(1).)
If the person refuses to take a blood-alcohol test, he or she
is subject to 96 hours in county jail whether or not probation
is imposed. (Vehicle Code 23577.)
Existing law provides that, as of July 1, 2010, the Department
of Motor Vehicles shall advise the person convicted of a second
DUI, who was not convicted in the Counties of Alameda, Los
Angeles, Sacramento, and Tulare, that after completion of 90
days of the suspension period, the person may apply for a
restricted license subject to the following conditions are met:
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).)
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Existing law provides that a person who is convicted of a third
DUI within seven years shall be punished by imprisonment in the
county jail for 120 days to one year and/or a fine of $390 to
$1,000. (Vehicle Code 23546.) If the person is granted
probation, he or she is subject to the following penalties:
120 days to 1 year in county jail. (Vehicle Code 23548.)
$390 to $1,000 fine plus 190% penalty assessments. (Vehicle
Code 23548.)
3 year revocation of driver's license. (Vehicle Code
13352(a)(5).)
18 or 30 month treatment program. (Vehicle Code 23548.)
As of July 1, 2010, if convicted in the Counties of Alameda,
Los Angeles, Sacramento, and Tulare, a person shall install an
ignition interlock device for a period of 24 months. (Vehicle
Code 23700.)
Existing law provides that additional penalties also apply to a
person convicted of a third DUI within seven years including:
Restitution fine of $100-$1,000. (Penal Code 1202.4.)
The court must impound the vehicle for up to 90 days if the
offense occurred within two years of a prior DUI unless
"interest of justice" exception is found (defendant must be
registered owner of vehicle used in the offense. (Vehicle
Code 23594.)
The court may order forfeiture of vehicle (defendant must be
registered owner of vehicle used in the offense. (Vehicle
Code 23596.)
The court may order installation of an ignition interlock
device as a condition of probation. (Vehicle Code 23575(1).)
The Court must designate defendant as a habitual traffic
offender for three years. (Vehicle Code 13350(b),
14601.3(e)(3).)
If the person refuses to take a blood-alcohol test, he or she
is subject to 10 days in county jail whether or not probation
is imposed. (Vehicle Code 23577.)
Existing law provides that, as of July 1, 2010, the Department
of Motor Vehicles shall advise the person convicted of a third
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DUI, who was not convicted in the Counties of Alameda, Los
Angeles, Sacramento, and Tulare, that after completion of 6
months of the suspension period, the person may apply for a
restricted license subject to the following conditions are met:
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 a person who is convicted of a fourth
or subsequent DUI within seven years shall be punished by
imprisonment in the state prison, or in a county jail for not
less than 180 days and/or a fine of $350 to $1,000. (Vehicle
Code 23550.) A person who is granted probation is subject to
the following penalties:
16 months or 2 or 3 years in state prison if not probation;
180 days to 1 year if probation. (Penal Code 18; Vehicle
Code 23550 and 23552.)
$390 to $1,000 fine plus 190% penalty assessments. (Vehicle
Code 23552.)
4 year revocation of driver's license. (Vehicle Code
13352(a)(7).)
18 or 30 month treatment program. (Vehicle Code 23552.)
As of July 1, 2010, if convicted in the Counties of Alameda,
Los Angeles, Sacramento, and Tulare, a person shall install an
ignition interlock device for a period of 36 months. (Vehicle
Code 23700.)
Existing law provides that additional penalties also apply to a
person convicted of a fourth DUI within seven years including:
Restitution fine of $100 to $1,000 for a misdemeanor or $200
to $10,000 for a felony. (Penal Code 1202.4.)
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The court must impound the vehicle for up to 90 days if the
offense occurred within 2 years of a prior DUI unless
"interest of justice" exception is found (defendant must be
registered owner of vehicle used in the offense. (Vehicle
Code 23594.)
The court may order forfeiture of vehicle (defendant must be
registered owner of vehicle used in the offense. (Vehicle
Code 23596.)
The court may order installation of an ignition interlock
device as a condition of probation. (Vehicle Code
23575(1); 13325(a)(7).)
The Court must designate defendant as a habitual traffic
offender for three years. (Vehicle Code 13350(b);
14601.3(e)(3).)
If the person refuses to take a blood-alcohol test, he or she
is subject to 18 days in county jail whether or not probation
is imposed. (Vehicle Code 23577.)
Existing law provides that if a person who is convicted of a DUI
who has had a prior felony DUI or felony vehicular manslaughter
(Penal Code 192(c)(1)) within 10 years or ever has been
convicted of vehicular manslaughter while intoxicated, gross
vehicular manslaughter while intoxicated, or vehicular
manslaughter punished as a felony (Penal Code 192(c)(3)) shall
be punished as a felony punishable by 16 months, 2 or 3 years or
a misdemeanor of up to one year in jail, a fine of $390-$1,000
and a 4 or 5 year license revocation. A person granted
probation is subject to the following penalties:
Up to three years in state prison, or
Up to one year in jail.
A fine up to $1,000 plus penalty assessments.
Completion of a treatment program in order to have license
reinstated.
4 year license revocation or a 5 year revocation if it is a
third or subsequent DUI. (Vehicle Code 23550.5; 23600.)
Existing law provides that gross vehicular manslaughter while
intoxicated is the unlawful killing of a human being without
malice aforethought, in the driving of a vehicle, where the
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driving was in violation of DUI laws, and the killing was either
the proximate result of the commission of an unlawful act, not
amounting to a felony, and with gross negligence, or the
proximate result of the commission of a lawful act that might
produce death, in an unlawful manner and with gross negligence.
It is punishable by imprisonment in state prison for 4, 6 or 10
years or if the person has a prior DUI, gross vehicular
manslaughter while intoxicated or vehicular manslaughter then
the punishment is 15 years to life in state prison. (Penal Code
191.5(a), (c)(1) and (d))
Existing law provides that vehicular manslaughter while
intoxicated is the unlawful killing of a human being without
malice aforethought, in the driving of a vehicle, where the
driving was in violation of DUI laws, and the killing was either
the proximate result of the commission of an unlawful act, not
amounting to felony, but without gross negligence, or the
proximate result of the commission of a lawful act that might
produce death, in unlawful manner, but without gross negligence.
It is punishable as a wobbler with a penalty of up to one year
in jail or imprisonment the state prison for 16 months, 2 or 3
years. (Penal Code 191.5.)
This bill provides that upon receipt of an abstract of the
record of a court showing a person has been convicted of a DUI
and DMV determines that it is the person's third or subsequent
DUI, DMV shall permanently revoke the person's license.
This bill provides that a person whose license was permanently
revoked by DMV may petition the court for the reinstatement of
his or her driving privilege after a period of five years from
the date of his or her last conviction, if he or she does all of
the following:
Successfully passes the written test for the license
classification.
Successfully passes the driving test for the license
classification.
Successfully completes an 18 month licensed driving-under-the
influence program or if available in the county of the
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person's residence or employment, a licensed 30-month driving
under the influence program.
This bill provides that when determining whether to order DMV to
reinstate the person's license, the court shall consider all of
the following:
The degree of bodily injury caused by the person's previous
violations that resulted in a conviction.
The period of time that has elapsed since the person's
previous convictions.
The person's blood-alcohol level at the time of each
violation.
The person's past and future participation in an alcohol
treatment program in an effort to rehabilitate himself or
herself.
The person's overall risk to traffic or public safety.
This bill provides that upon receipt of a duly certified
abstract of the record of the court showing that the court has
ordered reinstatement of a driver's license, DMV shall reinstate
the person's driver's license.
This bill provides that a person whose driver's license has been
permanently revoked shall not be eligible for a restricted
driver's license under this Code.
This bill provides that a person with four or more DUI
convictions shall not be eligible to petition the court for
reinstatement of his or her driving privilege after five years.
This bill provides that a person whose driver's license is
permanently revoked by DMV shall be prohibited from registering
a vehicle in this state.
This bill contains the following legislative findings and
declarations:
That some repeat offenders of the prohibition against
driving under the influence of alcohol or drugs, when they
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are addicted to or when they have too much alcohol in their
systems, may be escaping the intent of the Legislature to
punish the offender with progressively greater severity if
the offense is repeated one or more times. This situation
may occur when a conviction for a subsequent offense occurs
before a conviction is obtained on an earlier offense.
That the timing of the court proceeding should not
permit a person to avoid aggravated mandatory minimum
penalties for multiple separate offenses. It is the intent
of the Legislature to provide that a person be subject to
enhanced mandatory minimum penalties for multiple offenses
regardless of when the convictions for those offenses were
obtained.
Nothing in this section requires consideration of a
judgment of conviction in a separate proceeding that is
entered after the judgment in the present proceeding,
except as it relates to violation of probation.
Nothing in this section or the amendments to Section
23540, 23546, 23550, 23560, 23622 or 23640 made by Chapter
1205 of the Statutes of 1984 affects the penalty for a
violation of Section 23152 or 23153 occurring prior to
January 1, 1985.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
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. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
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point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, the U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Existing law doesn't include a provision to take the
most dangerous repeat DUI offenders off the road.
Because conviction records are only retained for ten
years, prior offenses are often overlooked when DUI
offenders are sentenced, allowing repeat offenders to
regain their license after a short suspension.
Allowing repeat offenders to continue to drive has both
a human and a fiscal cost. In May, 2009, in Novato,
nine year old Melody Osheroff and her father were struck
in a crosswalk by a motorcyclist who was twice the legal
-----------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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limit for driving and had twelve prior convictions for
DUI or reckless driving. Melody was killed and her
father lost a leg in the collision. Edward Schaeffer,
the man who killed Melody, was recently convicted of
second degree murder and awaits sentencing. This
tragedy, and the associated costs for incarcerating
Edward Schaeffer, might have been avoided if his drivers
license had been revoked.
AB 1443 bill gives judges the authority to permanently
revoke a driver's license after three convictions for
DUI. The bill requires the judge to consider the time
between convictions, any injury caused by the driver,
the level of intoxication, the individual's efforts to
rehabilitate themselves, and their overall risk to
public safety.
Even if their license has been permanently revoked by a
judge after a third or fourth conviction for DUI, this
bill allows a driver to apply to the department for
reinstatement of their license after a period of three
years if they retake their driving test and successfully
complete an approved 18 or 30 month drug/alcohol
treatment program.
After five convictions for DUI, this bill requires a
judge to permanently revoke a person's license.
2. History of This Bill
As introduced and as this bill left the Assembly, AB 1443 was a
Committee on Water, Parks and Wildlife measure dealing with Fish
and Wildlife enforcement. On June 9, 2010, AB 1443 was amended
in a non-germane manner to be a bill dealing with gaming
compacts and Assemblymember Huffman became the sole author. On
February 18, 2010, AB 1443 was again amended in a non-germane
manner to deal with the current subject matter of the bill.
Since February 25, 2010, when AB 1443 was re-referred to the
Senate Committee on Public Safety, it has been amended three
times, including most recently on June 23, 2010.
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This bill, with this current subject matter, was not heard in
the Assembly by either a policy committee or the Appropriations
Committee. AB 1601 (Hill) which is also scheduled for hearing
today, was heard in the Assembly Public Safety Committee as well
as the Assembly Appropriations Committee, where it was
significantly amended. Historically, this Committee has not
passed out two bills with contrary policy, nor has the Assembly
Public Safety Committee. Historically, this Committee has also
respected the work of the Committees of the Assembly, and they
have reciprocated with the same respect in order to facilitate
the smooth operation of the Legislature.
3. Permanent Revocation
This bill provides that upon conviction for a third DUI, DMV
shall permanently revoke the person's driver's license. After
five years a person may petition the court for reinstatement of
his or her driver's license, if he or she passes the appropriate
written and driving tests and completes a
driving-under-the-influence program. When determining whether
to reinstate, the court shall consider: the degree of bodily
injury caused by a person's previous violations; the period of
time that has elapsed since the prior convictions; the person's
blood-alcohol level at the time of each violation; the person's
past and future participation in an alcohol treatment program in
an effort to rehabilitate himself or herself; and, the person's
overall risk to traffic or public safety.
If a person has four or more convictions, under this bill their
license is permanently revoked and cannot be reinstated.
4. Information From the 2010 Annual Report of the California
DUI Management System
In accordance with AB 757, Chapter 450, Statutes 1989, DMV does
an annual report on the California DUI Management System
compiling and analyzing information of DUI arrests, convictions
and sanctions in California. The 2010 report included the
following information:
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DUI arrests increased for the third consecutive year, by
5.4% in 2008, following an increase of 3.4% in 2007, and an
increase of 9.4% in 2006. (p. 8)
The DUI arrest rate per 100 licensed drivers was 0.9 in
2008, unchanged from 2007, and up from 0.8 in 2000-2006.
This represents a 50% reduction from the 1.8 rate in 1990.
(p.8)
The percentage of DUI arrests that were felonies
(involving bodily injury or death) decreased slightly from
3.0% in 2007 to 2.7% in 2008. Felony DUI arrests continue
to constitute a relatively small percentage of all DUI
arrests. (p.5)
Among 2007 DUI arrestees subsequently convicted, 73.6%
were first offenders, 19.8% were second offenders, 4.9%
were third offenders, and 1.7% were on their fourth-or-more
offense. (The statutorily defined time period for counting
priors in California has traditionally been 7 years,
although that period was changed to 10 years by SB 1694,
Torlakson, effective 1/1/2005.) The proportion of all
convicted DUI offenders that are repeat offenders (26.4%)
has increased ever since the counting period for priors
changed from 7 to 10 years. (p.15)
In summary, the 1994 offenders have long-term re-offense
rates that are higher among those with more DUI priors
(within 10 years) among males, and among younger-aged
drivers. These findings are not surprising and are
consistent and supported by previous studies. In comparing
the re-offense rates between the 1994 and 2000 groups with
the 1980 and 1984 offenders, it was found that the
cumulative proportions of re-offenses was much lower among
the 1994 and 2000 offenders. The dramatically lower
re-offense rates of the 1994 and 2000 groups could be
attributed, in part, to the enactment of more stringent
sanctions for DUI offenders in the past 2 decades,
including the APS suspension law of 1990. (p. 48)
(http://www.dmv.ca.gov/about/profile/rd/DUI_MIS_Report2010%2
0.pdf)
5. DMV v. Court
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a. DMV to do initial revocation.
This bill provides that after a third DUI, DMV shall revoke a
person's license. There is no discretion to determine what
type of person the offender is before the revocation happens.
Do they have remorse? Have they already acknowledged they
have a problem? Are they already taking steps to deal with
their problem? After a fourth DUI, this revocation is
permanent.
Is it appropriate to have a potentially permanent revocation
be an administrative function at this point? Not all third or
even fourth offenders re-offend. If a person's license is
revoked, they have no incentive to immediately deal with their
alcohol problem or to attend the driving-under-the-influence
program.
AB 1601 (Hill) provides for the revocation after the third
offense to occur in giving the court the ability to use its
discretion in the revocation having had all the facts of the
case before it, with the district attorney, a probation report
and defense attorney there to make the case whether or not a
revocation would be appropriate.
SHOULD THE REVOCATION AFTER THE THIRD OFFENSE BE AN
ADMINISTRATIVE ACTION?
b. Court to reinstate.
This bill provides that after five years of the revocation,
the person can petition the court to reinstate his or her
license. It is not really clear how this will work. Who will
inform the court of the information that must be considered
before issuing the reinstatement? Will the district attorney
be required to pull up the old files and do some investigation
to determine the person's "effort to rehabilitate himself" and
his or her "overall risk to public safety"? What type of
notice must the petitioner give the District Attorney? Will a
report be required from the probation department, if so who
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will initiate the report? Will the person be able to be
appoint counsel if he or she cannot afford representation? If
so, what will the appointed counsel have to do as far as the
investigation to put on a case for his or her client?
HOW WILL IT WORK FOR A DEFENDANT TO GO BACK TO A COURT FIVE OR
MORE YEARS AFTER HIS OR HER LAST CONVICTION TO SEEK AN ORDER
FOR REINSTATEMENT OF HIS OR HER LICENSE?
6. Revocation After a Third Offense
This bill provides for the 10-year revocation after the third
offense. Is the third offense in 10 years the appropriate time
for this extended sanction? Would it be more appropriate after
a person has faced a felony conviction? What incentive does a
person have to immediately go to attend the drinking-driver
treatment program if they cannot seek reinstatement of their
license for 5 years? Will this result in more people driving on
a revoked license who have not had the benefit of attending a
treatment program or opting to install an ignition interlock
device and drive legally?
WILL A LONGER REVOCATION RESULT IN MORE PEOPLE DRIVING
ILLEGALLY?
WILL A LONGER REVOCATION DELAY PARTICIPATION IN A TREATMENT
PROGRAM?
7. Third DUI in What Time Frame ?
This bill provides for a revocation of the driver's license for
a third offense, no matter when the offenses occurred. It does
not require the offense to be the third within 10 years, which
since 2006 has been the time frame for using a violation as a
prior. A person could have had two DUIs 20 years ago and had
the third offense with a low blood-alcohol level. It is not
clear that this is the type of person whose license should be
revoked permanently with no discretion on behalf of the DMV.
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The potentially long time frame makes it even harder for a court
to make the determinations to reinstate the license as they will
not likely have the old court files.
IF THERE IS TO BE A LICENSE REVOCATION, SHOULDN'T THE DUI
OFFENSES FALL WITHIN THE 10-YEAR LIMIT FOR PRIORS?
8. Permanent Revocation After a Fourth
This bill provides that if a person has a 4th DUI, in any time
frame, their license will be permanently revoked with no ability
to have it reinstated. Since not all fourth offenders currently
re-offend, what incentive does a person have to get treatment or
attend a treatment program if his or her license will be
permanently revoked? Will this bill result in more repeat
offenders as opposed to less since many people will continue to
drive despite the fact that their license has been revoked and
they will do so without having had any treatment?
WHAT WILL THE IMPACT OF A PERMANENT REVOCATION BE?
COULD A PERMANENT REVOCATION HAVE THE UNINTENDED RESULT OF
INCREASING THE RECIDIVISM RATE SINCE PEOPLE HAVE NO INCENTIVE TO
ATTEND A TREATMENT PROGRAM?
9. How Does This Work With IID Pilot ?
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AB 91 (Feuer) Chapter 217, Statutes 2009, created a pilot
project in the Counties of Alameda, Los Angeles, Sacramento, and
Tulare requiring the installation of an ignition interlock by a
person convicted of a DUI. The pilot project is set to begin
July 1, 2010. A person with a fourth conviction must install
the interlock for 36 months and can drive with a restricted
license while it is on. What impact will this bill have on that
pilot project study if people instead face an automatic
permanent revocation? Proponents of Feuer argued that the
installation of an IID would have an impact on long-term
recidivism rates. Should the Legislature see what impact the
mandatory IID pilot has before changing the penalties?
HOW WILL THIS PERMANENT REVOCATION AFFECT THE IID PILOT PROJECT
THAT WILL BEGIN JULY 1?
10. Registration Prohibition
This bill provides that a person whose license has been
permanently revoked by DMV shall be prohibited from registering
a vehicle in California. What about vehicles the person
currently owns? Someone can own and register a vehicle and not
have a valid driver's license. An elderly person who loses his
or her license is not prohibited from registering his or her
vehicle he or she might keep so others can drive them around. A
person who cannot renew or get a license because of sight or
health issues can still own a vehicle. What about a person who
has an alcohol problem who also collects antique cars and does
not drive them? Must that person sell those cars? Why can't a
person who knows they shouldn't drive and doesn't plan on it,
own a car and hire a driver or have a family member drive it for
them? What does not allowing a person to register a car really
accomplish? It does not keep a person from driving a car or
registering it in someone else's name. What will happen if a
person buys a new car and the dealer tries to send in the
registration? Is it just rejected by DMV? Does the dealer then
face liability since the car would still be in the dealer's
name? An ID Card or Driver's license is required on the DMV
registration form so a license is not currently needed to
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register a vehicle.
WHAT DOES NOT ALLOWING THE REGISTRATION OF A VEHICLE ACCOMPLISH?
11. Legislative Intent
This bill contains the following legislative findings and
declarations:
That some repeat offenders of the prohibition against
driving under the influence of alcohol or drugs, when they
are addicted to or when they have too much alcohol in their
systems, may be escaping the intent of the Legislature to
punish the offender with progressively greater severity if
the offense is repeated one or more times. This situation
may occur when a conviction for a subsequent offense occurs
before a conviction is obtained on an earlier offense.
That the timing of court proceeding should not permit a
person to avoid aggravated mandatory minimum penalties for
multiple separate offenses. It is the intent of the
Legislature to provide that a person be subject to enhanced
mandatory minimum penalties for multiple offenses
regardless of when the convictions for those offenses were
obtained.
Nothing in this section requires consideration of a
judgment of conviction in a separate proceeding that is
entered after the judgment in the present proceeding,
except as it relates to violation of probation.
Nothing in this section or the amendments to Section
23540, 23546, 23550, 23560, 23622 or 23640 made by Chapter
1205 of the Statutes of 1984 affects the penalty for a
violation of Section 23152 or 23153 occurring prior to
January 1, 1985.
It is not clear that with all the recent amendments, these
legislative findings and declarations are still relevant or
whether what they are saying is accurate.
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