BILL ANALYSIS
SB 154
Page 1
Date of Hearing: June 23, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 154 (Benoit) - As Amended: April 28, 2009
As Proposed to be Amended in Committee
SUMMARY : Makes several changes to boating under the influence
(BUI) provisions to conform the treatment and license suspension
requirements to those of driving under the influence (DUI).
Specifically, this bill :
1)Includes BUI with a prior BUI- or DUI-related offense within
seven years to the list of convictions that may result in the
suspension of driving privileges.
2)Requires that courts impose, as a condition of probation, a
requirement that the person participate in, and successfully
complete, a licensed alcohol or drug recovery services program
under the following circumstances:
a) Upon a first conviction of BUI.
b) Upon a second or subsequent conviction of BUI within
seven years of a prior BUI- or DUI-related offense.
c) Upon conviction of operating a vessel while under the
influence and in a manner that causes bodily injury to
another.
3)Conforms the treatment program requirements for BUI to those
required in DUI cases, as specified.
4)Adds vehicular manslaughter committed during the operation of
a vessel to the list of prior offenses that trigger enhanced
penalties for subsequent convictions of BUI.
EXISTING LAW :
1)Provides that a person who is convicted of a first DUI offense
is subject to the following penalties when given probation: a
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possible 48 hours to six months in jail; $390 to $1,000 fine
plus 250% penalty assessments; completion of a three-month
treatment program or a nine-month program if the blood alcohol
content was 0.20% or more; six-month license suspension, or
10-month suspension if a nine-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 Sections 13352(a)(1),
13352.1, 13352.4, and 23538(a)(3).]
2)States that no person shall operate any vessel or manipulate
water skis, an aquaplane, or a similar device while under the
influence of an alcoholic beverage and any drug. [Harbors and
Navigation Code Section 655 (b).]
3)Provides that no person shall operate any recreational vessel
or manipulate any water skis, aquaplane, or similar device if
the person has an alcohol concentration of 0.08% or more in
his or her blood. [Harbors and Navigation Code Section 655
(c).]
4)States that no person shall operate any vessel other than a
recreational vessel if the person has an alcohol concentration
of 0.04% or more in his or her blood. [Harbors and Navigation
Code Section 655(d).]
5)Provides that no person shall operate any vessel, or
manipulate water skis, an aquaplane, or similar device, who is
addicted to the use of any drug. [Harbors and Navigation Code
Section 655(e).]
6)States that a person convicted of a first violation of BUI
shall be punished by a fine of not more than $1,000 or
imprisonment in the county jail for not more than six months,
or by both that fine and imprisonment. If probation is
granted, the court, as a condition of probation, may require
the person to participate in and successfully complete a
licensed drinking driver treatment program. [Harbors and
Navigation Code Section 668 (c).]
7)Provides that a person convicted of a second or subsequent
violation of BUI or DUI shall be punished by a fine of not
more than $1,000 or imprisonment in the county jail for not
more than one year or by both that fine and imprisonment. If
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probation is granted, the court may require a person to do
either of the following, if available in the county of the
person's residence or employment: an 18-month or 30-month
alcohol and drug treatment program. [Harbors and Navigation
Code Section 668 (f).]
8)States that no person shall operate any vessel, or manipulate
water skis, an aquaplane, or a similar device while under the
influence of an alcoholic beverage, any drug or under the
combined influence of an alcoholic beverage and any drug, and
while so operating, do any act forbidden by law, or neglect
any duty imposed by law in the use of the vessel, water skis,
aquaplane, or similar device, which act or neglect proximately
causes bodily injury to any person other than himself or
herself. [Harbors and Navigation Code Section 655(f).]
9)Provides that a person convicted of BUI and causing great
bodily injury is guilty of an alternate felony/misdemeanor
with a fine of $250 to $5,000. If probation is granted, the
court, as a condition of probation, may require a person to
participate in and successfully complete a licensed
drinking-driver treatment program. [Harbors and Navigation
Code Section 668(g).]
10)States that if a person is convicted of BUI within seven
years of a separate conviction of BUI and is granted
probation, the court shall impose as a condition of probation
that the person be confined in the county jail for not less
than five days or more than one year and pay a fine of not
less than $250 or more than $5,000. [Harbors and Navigation
Code Section 668(h)(1).]
11)Provides that if a person is convicted of a violation of BUI
within seven years of a BUI with injury, gross vehicular
manslaughter while intoxicated, vehicular manslaughter
committed during operation of a vessel, or DUI and the
defendant is granted probation, the court shall impose as a
condition of probation that the person be confined in the
county jail for not less than 90 days or more than one year
and pay a fine of not less than $250 or more than $5,000; and
the court, as a condition of probation, may order that the
person participate in a manner satisfactory to the court, in a
program licensed, as specified, if available in the county of
the person's residence or employment. [Harbors and Navigation
Code Section 668(h)(2).]
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12)Specifies that the court shall not absolve a person who is
convicted of a violation of subdivision BUI within seven years
of a separate BUI conviction, vehicular manslaughter committed
during operation of a vessel, or DUI, when the separate
conviction resulted from the operation of a motor vehicle,
from the minimum time in confinement provided in this section,
and a fine of at least $250. [Harbors and Navigation Code
Section 668(i).]
13)Provides that except in unusual cases where the interests of
justice demand an exception, the court shall not strike a
separate conviction of specified BUI- or DUI-related offenses.
[Harbors and Navigations Code Section 688 (j).]
14)States that a conviction for BUI, BUI with injury, gross
vehicular manslaughter while intoxicated, or vehicular
manslaughter with a vessel act as a separate offense for a
violation of DUI or DUI causing injury for the purpose of
determining a prior for sentencing for a current DUI
conviction. [Vehicle Code Section 23620.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "According to
the California Department of Boating and Waterways, 25% of all
deaths on California waterways are attributed to boat
operators who were under the influence of alcohol.
"Since the mid-1990s, the Department of Motor Vehicles (DMV)
operated under the assumption that they had the statutory
authority needed to suspend the drivers licenses of
individuals who had been boating under the influence.
Basically, the DMV treated BUI cases similar to DUI cases
which in the California Vehicle Code call for the suspension
of a person's driving privileges.
"In 2008, the California Court of Appeals ordered an end to this
process. The court's argument for halting this process was
based solely on the fact that DMV lacked explicit statutory
authority.
"The same reckless mindset is at work when intoxicated
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individuals take either the wheel of the car or control of a
watercraft. SB 154 reflects the seriousness of BUI offenses,
protecting the safety of travelers on California's streets,
highways, and waterways."
2)Brings BUI Treatment Program Requirements into Conformity with
Existing DUI Treatment Program Requirements : A person who
receives probation for a DUI is required to participate in the
appropriate licensed DUI program. The program required is
either a three-month or nine-month program for a first offense
and an 18-month or 30-month program for a second or subsequent
offense.
Existing law provides that if a person convicted of BUI is
granted probation, the court may require a person to
participate in and successfully complete an alcohol or drug
education, training, or treatment program. This bill requires
a person convicted of a BUI to participate in the type of
program required for a similar DUI. Thus, a person convicted
of a first-time BUI is required to participate in and complete
a three-month licensed program; and if his or her blood
alcohol level was over 0.20%, he or she is required to attend
a nine-month program. A person convicted of a repeat BUI, or
a BUI with a prior DUI, is required to attend an 18-month
program.
3)Mandatory License Suspension : If a person is convicted of a
DUI, his or her driving privilege is suspended by DMV through
an administrative process. Until recently, DMV believed it
had the authority to also suspend the driving privilege of a
person convicted of a BUI under Vehicle Code Section 23620.
However, when a plaintiff sought an injunction questioning the
DMV's authority, the court granted the injunction believing
that the plaintiff would prevail because DMV lacked the
authority to suspend or revoke the driving privilege of a
person convicted of a BUI. On appeal, the court upheld the
injunction and found that state law does not authorize DMV to
automatically suspend the driver's license of an individual
convicted of BUI. In fact, the court suggested, "[T]he answer
is to introduce legislation such as that drafted by the DMV in
2004, which would plainly give the DMV the authority to
suspend driver's licenses for individuals convicted of BUI."
[Cinquegrani v. DMV (2004) 163 Cal. App. 4th 741, 850.]
This bill amends Vehicle Code Section 13352 to provided that a
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violation of a BUI with a specified DUI or BUI prior within
seven years shall result in the immediate suspension or
revocation of the person's driving privilege. In Cinquegrani,
the DMV argued that the license suspension for a BUI was
appropriate because a person who is likely to be BUI is also
likely to drive under the influence. The court noted that the
plaintiffs in that case both had histories of DUI convictions.
4)Amendments to be Taken in Committee : The author is taking two
amendments in Committee:
a) Restores the Ability to Pay Provision from the Newly
Mandatory Treatment Provisions : Under current law, when a
court orders a defendant to participate in alcohol
treatment for a violation of the Harbors and Navigation
Code, the payment for the program is commensurate with his
or her ability to pay. [California Harbors and Navigation
Code Section 668(e).] The Harbors and Navigation Code
currently states:
"(e) Any person convicted of a first violation of subdivision
(b), (c), (d), or (e) of Section 655, or of a violation of
Section 655.4, shall be punished by a fine of not more than
one thousand dollars ($1,000) or imprisonment in the county
jail for not more than six months, or by both that fine and
imprisonment. If probation is granted, the court, as a
condition of probation, may require the person to
participate in, and successfully complete, an alcohol or
drug education, training, or treatment program, in addition
to imposing any penalties required by this code. In order
to enable all persons to participate in licensed programs,
every person referred to a program licensed pursuant to
Section 11836 of the Health and Safety Code shall pay that
program's costs commensurate with that person's ability to
pay as determined by Section 11837.4 of the Health and
Safety Code." (Emphasis added.)
SB 154 removed the highlighted ability-to-pay provision. As
a result, this bill would have a disparate impact upon
poorer individuals convicted of this offense. As a result,
the probationers unable to pay for their program would have
been violated and sent to jail. The author has agreed to
restore the ability-to-pay provision to Harbors and
Navigation Code Section 668(e).
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b) Restores the Discretion of the Court to Strike Prior
Convictions in the Interests of Justice : Previously, this
bill removed the discretion of a court to strike a prior
DUI or BUI conviction within seven years that enhances
punishments for specified subsequent BUI offenses. The law
currently provides judges with the discretion to strike a
prior conviction from consideration at sentencing in
unusual and compelling circumstances, thereby allowing a
judge to avoid sending an offender to jail for the minimum
period of confinement or the minimum mandatory fine.
Generally, granting judges with the discretion in sentencing
is considered good public policy, saves court time, and
provides district attorneys with some leeway in settling
cases. Current law already specifies that judges should
not strike prior convictions except in unusual
circumstances. As a policy matter, judges should fashion
appropriate remedies rather than a one-size-fits-all rule
as some cases do not fit exactly within the letter of the
law.
The author has agreed to restore the provision granting
judges the ability to fashion these remedies in unusual
circumstances.
5)Argument in Support :
a) According to the California Boating Safety Officers
Association (CBSOA), "[t]he California Boating Safety
Officers Association would like to be the sponsor of the
public safety legislation to reinstate the suspension of
California driver's licenses for individuals caught BUI.
The CBSOA is an organization of boating safety officers
throughout the State of California. We have a membership
of over 400 officers. One of our missions is to promote
legislation to enhance boating safety in California.
"Our organization was the lead in the legislation that
revamped California's BUI law to more closely align it with
the vehicle code previously. We strongly support SB 154
and believe the additional authorities it provides the DMV
will bring California in line with other states. We
believe the additional penalties to convicted individuals
of driver's license suspension and having to complete an
alcohol education course will help save lives on the waters
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of California.
"The California Department of Boating and Waterways reports
that 25% of all boating-related fatalities are attributed
to boat operators who were under the influence of alcohol.
CBSOA members are often the first to respond to these
tragic events and have the first responsibilities of
treating the injured, then the investigation of the
accident and arrest of those responsible. Next, the
officers have the responsibility of informing the family
members of the tragedy."
b) According to Mothers Against Drunk Driving (MADD), MADD
expresses support "for SB 154, a bill that would give the
DMV the statutory authority to suspend the driver's license
of a person who has received a BUI conviction.
"Boating and alcohol, just as driving and alcohol, do not
mix. Over twenty-fiver percent of California's annual
boating deaths involve alcohol. Since its inception in
1980, MADD has saved over 330,000 lives. Most of these
lives have been saved by laws penalizing DUI. However,
some of these lives have been saved as a result of MADD
members' advocacy for laws against BUI.
"SB 154 is a common-sense measure aimed at deterring
Californians from BUI. Studies show that suspension of a
driver's license has a deterrent effect to drinking and
driving. Suspension of a driver's license as a consequence
for BUI will likely similarly deter persons from drinking
and then boating."
6)Argument in Opposition:
a) According to the California Attorneys for Criminal
Justice and the California DUI Lawyers Association , "This
measure eliminates judicial discretion. Under current law,
a judge determines whether a licensed alcohol program is a
necessary condition of probation. A judge makes this
decision based upon the totality of the circumstances and
whether such alcohol programs are likely to benefit the
offender or are appropriate given the facts of the case.
Current law appropriately recognizes that a
one-size-fits-all approach is overly inclusive and an
unnecessary expenditure of resources. SB 154, however,
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removes this discretion-making authority from the judge and
makes such a program referral mandatory. In essence, the
practical effect of this measure is to impose a referral to
an alcohol program where a judge has determined it is
unwarranted. We are unaware of any studies indicating
judges are improperly exercising their authority. The
courtroom experience of our members indicates that judges
are more than willing to impose an alcohol program
requirement in appropriate cases. Therefore, eliminating
judicial discretion is unwarranted.
"CACJ and CDLA are also concerned that SB 154 will prohibit
low-wage offenders from participating in alcohol programs
and therefore result in a greater number of probation
violations. Current law takes into consideration a
person's ability to pay for a licensed alcohol program (HN
section 668(e)). SB 154 would remove this 'ability-to-pay'
language thereby increasing the risk that a low-wage earner
will be unable to participate in the licensed alcohol
program and violate his/her probation.
"CACJ and CDLA also oppose your efforts to treat a prior
BUI conviction as if it is a prior conviction for operating
a motor vehicle on a roadway while intoxicated. A BUI
should not serve as a base offense for subsequent DUIs.
First, the State of California does not treat boating the
same as operating a motor vehicle. You must obtain a
driver's license to operate a motor vehicle but no license
is required for boating. In fact, you may lawfully operate
a boat as young as 13 under specified circumstances.
California lacks an extensive regulatory scheme for boating
as is currently in place for motor vehicles, signaling a
recognition that the activities are vastly different. SB
154 treats them the same without corresponding State
regulatory authority."
b) According to Taxpayers for Improving Public Safety ,
"[t]here can be no excuse for operating a vessel, an
airplane or moving vehicle while under the influence of a
drug or alcohol. However, the draconian criminal sanctions
already in place for this crime have failed to obtain the
desired result, i.e., reduced violations of the penal code.
Regretfully, problem drinkers do not have their behaviors
changed by the threat of criminal sanctions, as
demonstrated by the number of unlicensed individuals who
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continue to drive after they are told not to do so.
"Regretfully, the only real solution is to change the
behavior of substance abusers. This can only be obtained
trough the recognition that problem drinking and use of
controlled substances is a health issue and not a criminal
one. Until such time as rehabilitative treatment becomes
the focus for resolving the horrible outcomes of operating
a vessel, moving vehicle or airplane under the influence,
the problem will continue unabated.
"Although well intentioned, this legislation will not abate
the problem, instead, it will exacerbate it. When a person
with habituation problems is prevented from working as the
result of the loss of an operators' license, he/she falls
more deeply into the grips of substance abuse. The
downward spiral increases the criminal behavior. Although
the loss of the privilege of operating a vessel is
insignificant, adding the loss of driving privileges is not
and should be amended out of the legislation."
7)Prior Legislation : AB 2073 (Benoit), of the 2007-08
Legislative Session, would have conformed penalty enhancement
provisions for BUI with existing DUI provisions. AB 2078 was
held in the Assembly Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Harbor Masters and Port Captains
California Boating Safety Officers Association
California District Attorneys Association
California Marine Parks and Harbors Association
California State Sheriffs' Association
California Yacht Brokers Association
Marina Recreation Association
Mothers Against Drunk Driving
Northern California Marine Association
Western Boaters Safety Group
Opposition
California Attorneys for Criminal Justice
California DUI Lawyers Association
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Taxpayers for Improving Public Safety
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744