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AB-401 Vehicles: driving under the influence.(2019-2020)

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Date Published: 03/04/2019 09:00 PM
AB401:v98#DOCUMENT

Amended  IN  Assembly  March 04, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill No. 401


Introduced by Assembly Member Flora

February 06, 2019


An act to amend Sections 23550, 23550.5, 23594, and 23596 of the Vehicle Code, relating to vehicles.


LEGISLATIVE COUNSEL'S DIGEST


AB 401, as amended, Flora. Vehicles: driving under the influence.
Under existing law, if a person is convicted of driving under the influence and the offense occurred within 10 years after 3 or more other violations for driving under the influence that resulted in specified convictions, that person has committed an offense punishable as either a misdemeanor or a felony, and the person shall have their privilege to drive revoked.
This bill would additionally make a conviction for driving under the influence that occurs within 10 years after 4 or more previous specified convictions, a felony.
Under existing law, if a person is convicted of driving under the influence and the offense occurred within 10 years after a specified conviction of driving under the influence that is charged as a felony, that person has committed an offense punishable as either a misdemeanor or a felony.
This bill would instead make such a conviction punishable only as a felony.
Existing law requires a court, upon convicting a person for a specified offense of driving under the influence that occurred within 5 years after a previous conviction or convictions, as specified, to order that person’s vehicle to be impounded for a specified period of time.
This bill would instead require this impoundment of the defendant’s vehicle for a specified offense that occurs within 10 years after a previous conviction or convictions. The bill would also increase the duration of the vehicle impoundment.
Existing law authorizes a court, after certain repeated convictions relating to driving under the influence, to declare the person’s vehicle a nusisance nuisance and have it seized, as specified.
This bill would instead require the court, after certain repeated convictions relating to driving under the influence, to declare the person’s vehicle a nusisance nuisance and have it seized, as specified. The bill would also expand the circumstances under which seizure as a nuisance would be required.
By expanding the application of, and increasing the punishment for, certain crimes, this bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 23550 of the Vehicle Code is amended to read:

23550.
 (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years after the first of three separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or in a county jail for not less than 180 days nor 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). The person’s privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (7) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.
(b) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years after the first of four or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000).
(c) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350.
(d) A person shall not be punished under subdivision (b) of this section and paragraph (1) of subdivision (a) of Section 23550.5 for the same act.

SEC. 2.

 Section 23550.5 of the Vehicle Code is amended to read:

23550.5.
 (a) A person is guilty of a public offense, punishable by imprisonment in the state prison 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 separate 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 separate violation of Section 23153 that was punished as a felony.
(3) A separate 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).
(c) The privilege to operate a motor vehicle of a person convicted of a violation that is punishable under subdivision (a) or (b) shall be revoked by the department pursuant to paragraph (7) of subdivision (a) of Section 13352, unless paragraph (6) of subdivision (a) of Section 13352 is also applicable, in which case the privilege shall be revoked under that provision. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.
(d) A person convicted of a violation of Section 23152 or 23153 that is punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation under subdivision (b) of Section 13350.
(e) A person shall not be punished under paragraph (1) of subdivision (a) of this section and subdivision (b) of Section 23550 for the same act.

SEC. 3.

 Section 23594 of the Vehicle Code is amended to read:

23594.
 (a) (1) Except as provided in subdivision (c), the interest of any registered owner of a motor vehicle that has been used in the commission of a violation of Section 23152 or 23153 for which the owner was convicted, is subject to impoundment as provided in this section. Upon conviction, the court may order the vehicle impounded at the registered owner’s expense for not less than one nor more than 30 days.
(2) If the offense occurred within 10 years after a prior offense which that resulted in conviction of a violation of Section 23152 or 23153, the prior conviction shall also be charged in the accusatory pleading and and, if admitted or found to be true by the jury upon a jury trial or by the court upon a court trial, the court shall, except in an unusual case where the interests of justice would best be served by not ordering impoundment, order the vehicle impounded at the registered owner’s expense for not less than 30 nor more than 90 days.
(3) If the offense occurred within 10 years after the first of two or more prior offenses that resulted in convictions of violations of Section 23152 or 23153, the prior convictions shall also be charged in the accusatory pleading and and, if admitted or found to be true by the jury upon a jury trial or by the court upon a court trial, the court shall, except in an unusual case where the interests of justice would best be served by not ordering impoundment, order the vehicle impounded at the registered owner’s expense for not less than 90 nor more than 180 days.

For

(b) For purposes of this section, the court may consider in the interests of justice factors such as whether impoundment of the vehicle would result in a loss of employment of the offender or the offender’s family, impair the ability of the offender or the offender’s family to attend school or obtain medical care, result in the loss of the vehicle because of inability to pay impoundment fees, or unfairly infringe upon community property rights or any other facts the court finds relevant. When no impoundment is ordered in an unusual case pursuant to this section, the court shall specify on the record and shall enter in the minutes the circumstances indicating that the interests of justice would best be served by that disposition.
(c) No vehicle that may be lawfully driven on the highway with a class C or class M driver’s license, as specified in Section 12804.9, is subject to impoundment under this section if there is a community property interest in the vehicle owned by a person other than the defendant and the vehicle is the sole vehicle available to the defendant’s immediate family that may be operated on the highway with a class C or class M driver’s license.

SEC. 4.

 Section 23596 of the Vehicle Code is amended to read:

23596.
 (a) (1) Upon its own motion, in a criminal action for a violation of any of the following offenses, the court with jurisdiction over the offense, notwithstanding Section 86 of the Code of Civil Procedure and any other law otherwise prescribing the jurisdiction of the court, shall declare the motor vehicle driven by the defendant to be a nuisance if the defendant is the registered owner of the vehicle:
(A) A violation of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code.
(B) A violation of Section 23152 that occurred within 10 years after one or more separate offenses of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, or Section 23153, or any combination thereof, that resulted in convictions.
(C) A violation of Section 23153 that occurred within 10 years after one or more separate offenses of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, or Section 23152 or 23153, that resulted in convictions.
(D) A violation of Section 23152 that occurred within 10 years after the first of two or more separate offenses of Section 23152 that resulted in convictions.
(2) The court or the prosecutor shall give notice of the motion to the defendant, and the court shall hold a hearing before a motor vehicle may be declared a nuisance under this section.
(b) Except as provided in subdivision (g), upon the conviction of the defendant and at the time of pronouncement of sentence, the court with jurisdiction over the offense shall order a vehicle declared to be a nuisance pursuant to subdivision (a) to be sold. A vehicle ordered to be sold pursuant to this subdivision shall be surrendered to the sheriff of the county or the chief of police of the city in which the violation occurred. The officer to whom the vehicle is surrendered shall promptly ascertain from the department the names and addresses of all legal and registered owners of the vehicle and, within five days of receiving that information, shall send by certified mail a notice to all legal and registered owners of the vehicle other than the defendant, at the addresses obtained from the department, informing them that the vehicle has been declared a nuisance and will be sold or otherwise disposed of pursuant to this section and of the approximate date and location of the sale or other disposition. The notice shall also inform a legal owner of its right to conduct the sale pursuant to subdivision (c).
(c) The legal owner who is a motor vehicle dealer, bank, credit union, acceptance corporation, or other licensed finance institution legally operating in this state, or the agent of that legal owner, may take possession and conduct the sale of the vehicle declared to be a nuisance if it notifies the officer to whom the vehicle is surrendered of its intent to conduct the sale within 15 days of the mailing of the notice pursuant to subdivision (b). Sale of the vehicle pursuant to this subdivision may be conducted at the time, in the manner, and on the notice usually given for the sale of repossessed or surrendered vehicles. The proceeds of a sale conducted by the legal owner shall be disposed of as provided in subdivision (e). A notice pursuant to this subdivision may be presented in person, by certified mail, by facsimile transmission, or by electronic mail. The agent of a legal owner acting pursuant to this subdivision shall be licensed, or exempt from licensure, pursuant to Chapter 11 (commencing with Section 7500) of Division 3 of the Business and Professions Code.
(d) If the legal owner or the agent of the legal owner does not notify the officer to whom the vehicle is surrendered of its intent to conduct the sale as provided in subdivision (c), the officer shall offer the vehicle for sale at public auction within 60 days of receiving the vehicle. At least 10 days but not more than 20 days prior to the sale, not counting the day of the sale, the officer shall give notice of the sale by advertising once in a newspaper of general circulation published in the city or county, as the case may be, in which the vehicle is located, that notice shall contain a description of the make, year, model, identification number, and license number of the vehicle and the date, time, and location of the sale. For motorcycles, the engine number shall also be included. If there is no newspaper of general circulation published in the county, notice shall be given by posting a notice of sale containing the information required by this subdivision in three of the most public places in the city or county in which the vehicle is located, and at the place where the vehicle is to be sold, for 10 consecutive days prior to and including the day of the sale.
(e) The proceeds of a sale conducted pursuant to this section shall be disposed of in the following priority:
(1) To satisfy the costs of the sale, including costs incurred with respect to the taking and keeping of the vehicle pending sale.
(2) To the legal owner in an amount to satisfy the indebtedness owed to the legal owner remaining as of the date of the sale, including accrued interest or finance charges and delinquency charges.
(3) To the holder of a subordinate lien or encumbrance on the vehicle to satisfy any indebtedness so secured if written notification of demand is received before distribution of the proceeds is completed. The holder of a subordinate lien or encumbrance, if requested, shall reasonably furnish reasonable proof of its interest and, unless it does so on request, is not entitled to distribution pursuant to this paragraph.
(4) To any other person who can establish an interest in the vehicle, including a community property interest, to the extent of that person’s provable interest.
(5) If the vehicle was forfeited as a result of a felony violation of subdivision (a) of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, or of Section 23153 that resulted in serious bodily injury to a person other than the defendant, the balance, if any, to the city or county in which the violation occurred, to be deposited in its general fund.
(6) Except as provided in paragraph (5), the balance, if any, to the city or county in which the violation occurred, to be expended for community-based adolescent substance abuse treatment services.
The person conducting the sale shall disburse the proceeds of the sale as provided in this subdivision, and provide a written accounting regarding the disposition to all persons entitled to or claiming a share of the proceeds, within 15 days after the sale is conducted.
(f) If the vehicle to be sold under this section is not of the type that can readily be sold to the public generally, the vehicle shall be destroyed or donated to an eleemosynary institution.
(g) No vehicle shall be sold pursuant to this section in either of the following circumstances:
(1) The vehicle is stolen, unless the identity of the legal and registered owners of the vehicle cannot be reasonably ascertained.
(2) The vehicle is owned by another, or there is a community property interest in the vehicle owned by a person other than the defendant and the vehicle is the only vehicle available to the defendant’s immediate family that may be operated on the highway with a class 3 or class 4 driver’s license.
(h) The Legislature finds and declares it to be the public policy of this state that no policy of insurance shall afford benefits that would alleviate the financial detriment suffered by a person as a direct or indirect result of a confiscation of a vehicle pursuant to this section.

SEC. 5.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.