BILL ANALYSIS �
AB 2690
Page 1
Date of Hearing: April 29, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2690 (Mullin) - As Amended: March 20, 2014
SUMMARY : Changes the term "prior violations" to "separate
violations" in a statute that authorizes enhanced penalties if
the current offense occurred within 10 years of a prior
conviction that was punished as a felony for specified driving
under the influence (DUI) offenses.
EXISTING LAW :
1)States that it is unlawful for a person who is under the
influence of any alcoholic beverage to drive a vehicle. (Veh.
Code, � 23152, subd. (a).)
2)States that it is unlawful for a person who has 0.08 % or
more, by weight, of alcohol in his or her blood to drive a
vehicle. (Veh. Code, � 23152, subd. (b).)
3)Provides that it is unlawful for a person who is under the
influence of any drug, or a combined influence of any
alcoholic beverage and drug to drive a vehicle. (Veh. Code, �
23152, subds. (e) & (f).)
4)Prohibits any person, while under the influence of any
alcoholic beverage to drive a vehicle and concurrently do any
act forbidden by law, or neglect any duty imposed by law in
driving the vehicle, and consequently proximately causing
bodily injury to any person other than the driver. (Veh.
Code, � 23153, subd. (a).)
5)Prohibits any person, while having 0.08% or more, by weight,
of alcohol in his or her blood to drive a vehicle and
concurrently do any act forbidden by law, or neglect any duty
imposed by law in driving the vehicle, and consequently
proximately causing bodily injury to any person other than the
driver. (Veh. Code, � 23153, subd. (b).)
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6)States that a person is guilty of a public offense, punishable
by imprisonment in the state prison or confinement in a county
jail for not more than one year and by a fine of not less than
$390 nor more than $1,000 if that person is convicted of a
violation of driving under the influence (DUI) offenses, and
the offense occurred within 10 years of any of the following
(Veh. Code, � 23550.5, subd. (a)):
a) A prior violation of a DUI offense punished as a felony,
as provided;
b) A prior violation of a DUI causing injury that was
punished as a felony; or,
c) A prior violation of vehicular manslaughter with gross
negligence that was punished as a felony.
7)Provides each person who, having previously been convicted of
gross vehicular manslaughter while intoxicated, a felony
violation vehicular manslaughter while intoxicated, or
vehicular manslaughter committed during operation of a vessel,
is subsequently convicted of a DUI or DUI causing injury, is
guilty of a public offense punishable by imprisonment in the
state prison or confinement in a county jail for not more than
one year and by a fine of not less than $390 nor more than
$1,000. (Veh. Code, � 23550.5, subd. (b).)
8)Requires the Department of Motor Vehicles (DMV) to revoke the
driving privilege of a person convicted of one of the offenses
described above. (Veh. Code, � 23550.5, subd. (c).)
9)Designates a person convicted of a DUI or a DUI causing injury
that is punishable under the enhanced penalties provided in
this section as a habitual traffic offender for a period of
three years, subsequent to the conviction, and requires the
person to be advised of this designation. (Veh. Code, �
23550.5, subd. (d).)
10)Requires a person who is convicted of a DUI and the offense
occurred within 10 years of three or more separate violations
of specified DUI related offenses, as specified, to be
punished as a county jail-eligible felony, or as a misdemeanor
in county jail for not less than 180 days nor more than one
year, and by a fine of not less than $390 nor more than $1000.
The person's driving privilege shall be revoked by DMV. (Veh.
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Code, � 23550, subd. (a).)
11)Gross vehicular manslaughter while intoxicated is punishable
by imprisonment in the state prison for 4, 6, or 10 years,
except as provided. (Pen. Code, � 191.5, subd. (c)(1).)
12)Vehicular manslaughter while intoxicated is punishable as a
misdemeanor by imprisonment in the county jail for not more
than one year or as a felony by imprisonment in the county
jail for 16 months or 2 or 4 years. (Pen. Code, � 191.5,
subd. (c)(2).)
13)States the Legislative finding and declaration that the
timing of court proceedings should not permit a person to
avoid aggravated mandatory minimum penalties for multiple
separate offenses occurring within a 10-year period. It is
the intent of the Legislature to provide that a person be
subject to the enhanced mandatory minimum penalties for
multiple offenses within a period of 10 years, regardless of
whether the convictions are obtained in the same sequence as
the offenses had been committed. (Veh. Code, � 23217.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "According to
the DMV's 2013 California DUI-MIS Report, there were nearly
150,000 DUI convictions in California in 2010 (the most recent
year for which data is available). More than 25% of those
convictions were for a repeat violation.
"Repeat offenders tend to be more inclined to drive drunk again,
and with even higher blood alcohol content [BAC]. The same
2013 DMV study shows that repeat offenders had an average BAC
level of more than twice the legal limit when they were
arrested.
"For decades, legislative intent to impose more severe
punishment on repeat DUI offenders has been reflected in
statute. However, some offenders are using a loophole in the
law to avoid enhanced penalties.
"AB 2690 conforms Vehicle Code �23550.5(a) with other statutes
relating to multiple DUI offenses, by changing the term 'prior
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violations' to 'separate violations'. This achieves the
Legislature's intent of punishing multiple DUI offenders more
severely."
2)Statutory Construction of Vehicle Code Section 23550.5 : A
non-injury driving under the influence (DUI) offense is
normally punished as a misdemeanor. (Veh. Code, � 23152.)
However, a DUI offense may be charged as a felony if one of
the following applies: (1) the defendant has a prior violation
within the last 10 years of a DUI offense that was punished as
a felony; (2) the defendant has a prior conviction for gross
vehicular manslaughter while intoxicated; or (3) the defendant
has been previously convicted within the last 10 years of
three or more separate DUI violations. (Veh. Code, �� 23550 &
23550.5.)
This bill affects defendants who have a prior violation within
the last ten years of a DUI offense that was punished as a
felony. Specifically, the bill would replace the "prior
violation" requirement with a "separate violation"
requirement. As illustrated in the following case, there is a
significant difference between "prior" and "separate"
violations in terms of applying the penalty enhancement from a
misdemeanor to a penalty pursuant to Vehicle Code Section
23550.5.
In People v. Baez (2008) 167 Cal. App. 4th 197, the defendant
was arraigned on DUI charges, and then a week later he was
arrested for DUI and vehicular manslaughter while intoxicated.
The defendant was convicted of those charges arising from the
subsequent manslaughter DUI. Applying the penalty enhancement
in subdivision (b) of Vehicle Code Section 23550.5 for a prior
conviction of DUI manslaughter, the defendant received a
felony conviction for the prior unresolved DUI.
On appeal, the appellate court considered whether, in a
prosecution for DUI, the defendant was subject to the enhanced
penalty based on manslaughter DUI, even though the prior
conviction for manslaughter DUI arose from conduct occurring
after the commission of the present offense. In its analysis,
the court carefully considered the language of the statute in
order to determine the Legislature's intent. "When looking to
the words of the statute, a court gives the language its
usual, ordinary meaning. [Citations.] If there is no ambiguity
in the language, we presume the Legislature meant what it said
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and the plain meaning of the statute governs. [Citations.]"
(People v. Baez, supra, 167 Cal. App. 4th at 201, citing
People v. Snook (1997) 16 Cal.4th 1210, 1216-1217.)
In relevant part, section 23550.5 provides: "(a) A
person is guilty of a public offense, punishable by
imprisonment in the state prison or confinement in a
county jail for not more than one year and by a fine
of not less than three hundred ninety dollars ($ 390)
nor more than one thousand dollars ($ 1,000) if that
person is convicted of a violation of Section 23152 or
23153 , and the offense occurred within 10 years of any
of the following: [] (1) A prior violation of Section
23152 that was punished as a felony under Section
23550 or this section, or both, or under former
Section 23175 or former Section 23175.5 , or both. []
(2) A prior violation of Section 23153 that was
punished as a felony. [] (3) A prior violation of
paragraph (1) of subdivision (c) of Section 192 of the
Penal Code that was punished as a felony. [] (b) Each
person who, having previously been convicted of a
violation of subdivision (a) of Section 191.5 of the
Penal Code , a felony violation of subdivision (b) of
Section 191.5 , or a violation of subdivision (a) of
Section 192.5 of the Penal Code , is subsequently
convicted of a violation of Section 23152 or 23153 is
guilty of a public offense punishable by imprisonment
in the state prison or confinement in a county jail
for not more than one year and by a fine of not less
than three hundred ninety dollars ($ 390) nor more
than one thousand dollars ($ 1,000)."
Section 23550.5, subdivision (b) does not require the
commission of the May 2006 Manslaughter DUI offense to
precede the commission of the March 2006 DUI offenses.
By its terms, the statute requires only that DUI
conviction occur subsequent to a conviction of
vehicular manslaughter while intoxicated. Tellingly,
the statute does not require the prior conviction to
be based on a prior violation. "It is a well
recognized principle of statutory construction that
when the Legislature has carefully employed a term in
one place and has excluded it in another, it should
not be implied where excluded." (Grubb & Ellis Co. v.
Bello (1993) 19 Cal.App.4th 231, 240 [23 Cal. Rptr. 2d
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281].) To illustrate, the Legislature included the
requirement of a "prior violation" in subdivision (a)
of section 23550.5 regarding felony convictions for
DUI ( �� 23152 , 23153 ) and vehicular manslaughter with
gross negligence ( Pen. Code, � 192, subd. (c)(1) ).
However, the Legislature did not impose this
requirement when enhancing the punishment for
vehicular manslaughter while intoxicated under
subdivision (b) of section 23550.5 . We note that the
Legislature has not been hesitant about specifying a
"prior offense" or a "prior violation" in other
contexts, including other provisions under the DUI
penalty enhancement scheme. [Citations.] Having done
so repeatedly in other contexts, the silence in
subdivision (b) of section 23550.5 , regarding the need
for a prior violation of vehicular manslaughter while
intoxicated, evinces the legislative intent that no
such prior conduct is required.
(People v. Baez, supra, 167 Cal. App. 4th at 201-202.)
The Baez case construed subdivision (b) of Vehicle Code Section
23550.5 in relation to subdivision (a) of the same statute.
Because the Legislature used the term "prior conviction" in
subdivision (b), but used the term "prior violation" in
subdivision (a), it is implied that the Legislature intended the
subdivisions to be applied differently.
However, the Legislature has stated its intent to provide that a
person be subject to the enhanced mandatory minimum penalties
for multiple offenses within a period of 10 years, regardless of
whether the convictions are obtained in the same sequence as the
offenses had been committed. (Veh. Code, � 23217.) This bill
would change the language in subdivision (a) of Vehicle Code
Section 23550.5 from "prior violation" to "separate violation."
The term "separate violation" is also used in other sections in
the Vehicle Code that authorize enhanced penalties for multiple
DUI offenses. (See Veh. Code, �� 23540, 23546 and 23550.)
3)Argument in Support : The California District Attorneys
Association , the sponsor of this bill, writes, "Courts have
repeatedly recognized that the use of the word 'prior' to
describe an offense has a particular meaning and signifies
that the alleged prior conviction must occur prior to the
conduct of the currently charged offense. People v. Snook
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(1997) 16 Cal.4th 1210 and People v. Baez (2008) 167
Cal.App.4th 197.
"Thus, despite the Legislature's clear intent to the contrary,
when the order of an offender's DUI convictions does not
follow the order of the offenses, the offender escapes more
severe penalties."
4)Current Legislation : AB 2500 (Frazier) makes it unlawful for
a person to drive a motor vehicle if his or her blood
specified amounts of amphetamine, methamphetamine, cocaine or
heroin or their metabolites, morphine, phencyclidine, or
delta-9-tetrahydrocannabinol of marijuana. AB 2500 will be
heard by this Committee today.
5)Prior Legislation :
a) AB 2552 (Torres), Chapter 753, Statutes of 2012, revises
and recasts provisions related to driving under the
influence of alcohol or drugs, or the combination of drugs
and alcohol by separating the provisions into three
distinct sections and subsections: driving under the
influence of alcohol, driving under the influence of drugs,
and driving under the influence of alcohol and drugs.
b) AB 1443 (Huffman), of the 2009-10 Legislative Session,
would have required 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. AB 1443
failed passage in the Senate Committee on Public Safety.
c) SB 132 (Battin), of the 2003-04 Legislative Session,
would have created an exception which allows a prior
conviction for DUI which was reduced to a misdemeanor, to
be used as a prior felony conviction for the purpose of
charging a new DUI as a felony. SB 132 was held in the
Assembly Committee on Appropriations.
d) AB 1078 (Jackson), Chapter 849, Statutes of 2001,
eliminated the 10-year washout period that existed when a
person has been convicted of a gross vehicular manslaughter
while DUI or vehicular manslaughter while DUI.
e) SB 1025 (Karnette) was substantially similar to AB 1078
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(Jackson), Chapter 849, Statutes of 2001. SB 1025 did not
move out of the Assembly Committee on Appropriations.
f) SB 1186 (Senate Committee on Public Safety), Chapter
118, Statutes of 1998, recast former Vehicle Code Section
23175.5 into Vehicle Code Section 23550.5, along with other
non-substantive changes.
g) AB 130 (Battin), Chapter 901, Statutes of 1997, provided
that once a person was charged with a felony DUI, gross
vehicular manslaughter while intoxicated, vehicular
manslaughter or vehicular manslaughter while intoxicated,
then that person would be subject to a felony charge for
any DUI conviction in the following 10 years.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (sponsor)
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744