BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 780 (Emmerson)
As Introduced February 18, 2011
Hearing date: March 29, 2011
Vehicle Code
MK:mc
VEHICLES: DRIVING OFFENSES: PUNISHMENT
HISTORY
Source: California District Attorneys Association
Prior Legislation: SB 895 (Huff) - Chapter 30, Statutes 2010
AB 1601 (Hill) - Chapter 301, Statutes 2010
AB 1443 (Huffman) - failed Senate Public Safety
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
AB 1078 (Jackson) - Chapter 849,
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Statutes 2001
AB 762 (Torlakson) - Chapter 756, Statutes of 1998
AB 130 (Battin) - Chapter 901,
Statutes 1997
AB 2240 (Battin) - 1996, failed
Sen. Crim. Pro.
Support: California Police Chiefs Association; Crime Victims
United of California
Opposition:California Public Defenders Association; California
DUI Lawyers Association
KEY ISSUES
SHOULD THE 10 YEAR LIMITATION ON USING A PRIOR
DRIVING-UNDER-THE-INFLUENCE (DUI) OFFENSE TO ENHANCE A SENTENCE BE
ELIMINATED?
SHOULD A PERSON WHO FLEES AN ACCIDENT WHERE A DEATH OCCURED AND IS
CHARGED WITH MURDER BE SUBJECT TO A 5 YEAR PENALTY ENHANCEMENT?
PURPOSE
The purpose of this bill is to eliminate the 10 year "wash-out"
for DUIs and to provide for an enhancement of 5 years if a
person flees an accident where a death occurred and that person
is charged with murder.
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
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blood to drive a vehicle. (Vehicle Code � 23152(b).)
Existing law provides that a prior driving-under-the-influence
(DUI) conviction only acts as a prior for the purposes of
sentencing for 10 years from the date of that conviction.
(Vehicle Code �� 23217; 23540; 23546; 23550; 23550.5; 23560;
23566.)
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. (Vehicle Code �� 23550.5;
23600.)
This bill deletes the 10-year limitation on a DUI conviction
acting as a prior thus providing that a DUI conviction will act
as a prior for the purposes of sentencing forever.
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
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, 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
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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 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.)
Existing law defines manslaughter as voluntary, involuntary or
vehicular. Voluntary manslaughter is a felony punishable by 3,
6 or 11 years in prison. Involuntary manslaughter is a felony
punishable by 2, 3 or 4 years in prison. Vehicular manslaughter
is a felony, a misdemeanor, or a wobbler depending on the
unlawful act and type of negligence involved. (Penal Code �� 192
and 193.)
Existing law provides that murder is the unlawful killing of a
human being, or fetus, with malice aforethought. Generally,
first degree murder is punishable by 25 to life in prison, or by
death, or life without parole if special circumstances are
alleged and proven. Second degree murder is punishable by 15 to
life. (Penal Code �� 187; 189; 190.2.)
Existing law provides that a driver involved in an accident
resulting in injury to another person shall immediately stop the
vehicle at the scene and fulfill specified requirements.
Failure to do so is punishable as a wobbler. (Vehicle Code �
2001(a)(b)(1)(2).)
Existing law provides a person who flees the scene of the crime
after committing a violation of vehicular manslaughter while
intoxicated, or manslaughter shall receive an additional penalty
of 5 years. (Vehicle Code � 2001(b (3)(c).)
This bill provides that a person who flees the scene of a
vehicle accident after committing a murder charged under Penal
Code section 187 shall receive an additional penalty of 5 years.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does appear to aggravate the prison overcrowding
crisis described above.
COMMENT
1. Need for This Bill
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According to the author:
Under current law, an offense of driving under the
influence (DUI) is effectively wiped away after 10
years. In other words, despite the fact that there are
enhanced penalties for second and subsequent DUI
convictions, a DUI that occurs 11 years after a first
DUI conviction is treated by the law as a first DUI.
Additionally, the law requires four convictions for DUI
without injury in a 10-year span in order to potentially
charge a felony. Finally, a sentence enhancement that
applies when a person flees the scene of specific types
of vehicular manslaughter does not apply if the person
is ultimately charged with murder, despite the fact that
murder is a more serious offense than manslaughter.
2. Ten Year Wash-Out
Under existing law, a DUI acts as a prior for 10 years after
which "washes-out" off of a person's record and will no longer
act as a prior for sentencing purposes, if a person gets any
future DUIs. In the DUI sentencing scheme, the penalties
including jail time, license suspensions and restrictions,
mandatory programs, etc., increase with each DUI a person gets.
A fourth DUI is a
wobbler, and a person can be sentenced to prison. If a person
is convicted of a fourth felony DUI, that felony will act as a
prior for 10 years making all DUIs that come within the 10 years
potential felonies.
Prior to January 1, 1998, the wash-out for all DUI priors was 7
years. In 1997, the California District Attorneys Association
sponsored AB 130 (Battin), which created the once a felony - all
DUIs within the next 10 years are felonies, policy. Prior bills
had been attempted in 1995 and 1996 to completely remove the
wash-out but the 10-year felony compromise was reached when it
was clear it would take care of the majority of the cases where
a habitual offender keeps driving and not cause the additional
cost on DMV for keeping the records. In 2004, SB 1694
(Torlakson) changed the remaining 7 year wash-out periods for
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misdemeanor DUIs to 10 years.
This bill removes the 10 year wash-out; therefore, a DUI will
act as a prior for sentencing purposes forever. The author
believes that the current DUI sentencing "scheme neglects the
seriousness of driving under the influence, specifically as it
relates to those who are repeatedly convicted of it over a long
period of time." Under this bill, a person who has two DUIs in
his or her 20s and gets a DUI with a low blood alcohol in his or
her 50s will be subject to the penalties for a 3rd DUI, not a
first. By removing the 10 year wash-out this bill will subject
more people to felony prosecutions either because they get a 4th
DUI over a longer period of time, or they get a 5th DUI anytime
in their lifetime.
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3. Fleeing the Scene of an Accident
Existing law requires a driver of a vehicle involved in an
accident resulting in an injury to immediately stop the vehicle
at the scene of the accident and give the other party in the
accident information regarding his or her driver's license,
insurance, address, etc. Failure to stop at the accident and
follow the requirements is punishable as a misdemeanor with
higher potential penalties if the injury is serious or a death
occurs. A person who flees the scene of the accident after
committing gross vehicular manslaughter while intoxicated or
vehicular manslaughter with gross negligence is subject to an
additional enhancement of 5 years in prison.
This bill provides that if a person is charged with murder after
fleeing the scene of vehicle accident he or she will also be
subject to the 5-year enhancement. The sponsor argues that the
same enhancement should apply when a person is charged with
murder instead of vehicular manslaughter, or gross vehicular
manslaughter while intoxicated. Vehicular manslaughter is a
wobbler with the felony penalty 2, 4 or 6 years in prison.
Gross vehicular manslaughter while intoxicated is a felony
punishable by 4, 6 or 10 years. Second degree murder is
punishable by 15 to life. While this bill would add a new
enhancement, it is unclear why it is necessary to add 5 years to
a 15 to life sentence. If the prosecutor can prove second
degree murder, they are already getting a longer sentence than
they would with either vehicular manslaughter or gross vehicular
manslaughter with the enhancement. However, the 5-year
enhancement would extend the time a person would serve before
being eligible for parole so it would impact the prison
population.
4. Opposition
The California Public Defenders Association opposes this bill
stating:
This bill abjectly rejects the possibility of
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rehabilitation and redemption and removes the incentive
provided by our legal system to achieve that
rehabilitation. Moreover, multiple offenses are
sometimes committed in close succession by people
struggling with the disease of alcoholism. If they
manage to extricate themselves from this scourge they
ought not be permanently barred from the driving
privilege necessary for a normal, successful life
because of a drinking they've overcome.
For example, if a person has two DUIs early in his life
and decades later finds himself arrested with a .08
blood alcohol level on the way home from his
granddaughter's wedding or while taking his wife to the
hospital with chest pains after a dinner party at home,
should he be subjected to a mandatory 120 days in jail
and permanent license suspension? Such a person may not
have driven after drinking for many years and may only
occasionally imbibe and only responsibly on special
occasions.
The total removal of a rational washout period ignores
the fact that after the passage of time an earlier
offense may have only an attenuated bearing on how
seriously a new offense should be viewed. If an earlier
offense has been punished, the offender has paid his
debt to society, has essentially rehabilitated himself,
and so much time has transpired, the new offense should
not be considered an enduring "pattern" of behavior
requiring, without exception, such a disproportionate
penalty.
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