Compare Versions

PDF |Add To My Favorites |Track Bill | print page

AB-1713 Vehicles: driving under the influence.(2019-2020)



Current Version: 02/22/19 - Introduced        


AB1713:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill No. 1713


Introduced by Assembly Members Burke and Flora
(Principal coauthor: Senator Hill)

February 22, 2019


An act to amend Sections 13353.2, 13382, 13557, 13954, 23152, 23153, and 23610 of the Vehicle Code, relating to vehicles.


LEGISLATIVE COUNSEL'S DIGEST


AB 1713, as introduced, Burke. Vehicles: driving under the influence.
Existing law prohibits a person from driving a motor vehicle when the person has 0.08 percent or more, by weight, of alcohol in their blood.
This bill would instead prohibit a person from driving a motor vehicle when the person has 0.05 percent or more, by weight, of alcohol in their blood.
The bill would also make other conforming changes.
By expanding the scope of an existing crime, 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 13353.2 of the Vehicle Code is amended to read:

13353.2.
 (a) The department shall immediately suspend the privilege of a person to operate a motor vehicle for any one of the following reasons:
(1) The person was driving a motor vehicle when the person had 0.08 0.05 percent or more, by weight, of alcohol in his or her their blood.
(2) The person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test.
(3) The person was driving a vehicle that requires a commercial driver’s license when the person had 0.04 percent or more, by weight, of alcohol in his or her their blood.
(4) The person was driving a motor vehicle when both of the following applied:
(A) The person was on probation for a violation of Section 23152 or 23153.
(B) The person had 0.01 percent or more, by weight, of alcohol in his or her their blood, as measured by a preliminary alcohol screening test or other chemical test.
(b) The notice of the order of suspension under this section shall be served on the person by a peace officer pursuant to Section 13382 or 13388. The notice of the order of suspension shall be on a form provided by the department. If the notice of the order of suspension has not been served upon the person by the peace officer pursuant to Section 13382 or 13388, upon the receipt of the report of a peace officer submitted pursuant to Section 13380, the department shall mail written notice of the order of the suspension to the person at the last known address shown on the department’s records and, if the address of the person provided by the peace officer’s report differs from the address of record, to that address.
(c) The notice of the order of suspension shall specify clearly the reason and statutory grounds for the suspension, the effective date of the suspension, the right of the person to request an administrative hearing, the procedure for requesting an administrative hearing, and the date by which a request for an administrative hearing shall be made in order to receive a determination prior to the effective date of the suspension.
(d) The department shall make a determination of the facts in subdivision (a) on the basis of the report of a peace officer submitted pursuant to Section 13380. The determination of the facts, after administrative review pursuant to Section 13557, by the department is final, unless an administrative hearing is held pursuant to Section 13558 and any judicial review of the administrative determination after the hearing pursuant to Section 13559 is final.
(e) The determination of the facts in subdivision (a) is a civil matter that is independent of the determination of the person’s guilt or innocence, shall have no collateral estoppel effect on a subsequent criminal prosecution, and shall not preclude the litigation of the same or similar facts in the criminal proceeding. If a person is acquitted of criminal charges relating to a determination of facts under subdivision (a), or if the person’s driver’s license was suspended pursuant to Section 13388 and the department finds no basis for a suspension pursuant to that section, the department shall immediately reinstate the person’s privilege to operate a motor vehicle if the department has suspended it administratively pursuant to subdivision (a), and the department shall return or reissue for the remaining term any driver’s license that has been taken from the person pursuant to Section 13382 or otherwise. Notwithstanding subdivision (b) of Section 13558, if criminal charges under Section 23140, 23152, or 23153 are not filed by the district attorney because of a lack of evidence, or if those charges are filed but are subsequently dismissed by the court because of an insufficiency of evidence, the person has a renewed right to request an administrative hearing before the department. The request for a hearing shall be made within one year from the date of arrest.
(f) The department shall furnish a form that requires a detailed explanation specifying which evidence was defective or lacking and detailing why that evidence was defective or lacking. The form shall be made available to the person to provide to the district attorney. The department shall hold an administrative hearing, and the hearing officer shall consider the reasons for the failure to prosecute given by the district attorney on the form provided by the department. If applicable, the hearing officer shall consider the reasons stated on the record by a judge who dismisses the charges. A fee shall not be imposed pursuant to Section 14905 for the return or reissuing of a driver’s license pursuant to this subdivision. The disposition of a suspension action under this section does not affect an action to suspend or revoke the person’s privilege to operate a motor vehicle under another provision of this code, including, but not limited to, Section 13352 or 13353, or Chapter 3 (commencing with Section 13800).

SEC. 2.

 Section 13382 of the Vehicle Code is amended to read:

13382.
 (a) If the chemical test results for a person who has been arrested for a violation of Section 23152 23140, 23152, or 23153 show that the person has 0.08 0.05 percent or more, by weight, of alcohol in the person’s blood, or if the chemical test results for a person who has been arrested for a violation of Section 23140 show that the person has 0.05 percent or more, by weight, of alcohol in the person’s blood, the peace officer, acting on behalf of the department, shall serve a notice of order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person.
(b) If the peace officer serves the notice of order of suspension or revocation, the peace officer shall take possession of any driver’s license issued by this state which is held by the person. When the officer takes possession of a valid driver’s license, the officer shall issue, on behalf of the department, a temporary driver’s license. The temporary driver’s license shall be an endorsement on the notice of the order of suspension or revocation and shall be valid for 30 days from the date of arrest.
(c) The peace officer shall immediately forward a copy of the completed notice of order of suspension form, and any driver’s license taken into possession under subdivision (b), with the report required by Section 13380, to the department. For the purposes of this section, “immediately” means on or before the end of the fifth ordinary business day following the arrest.

SEC. 3.

 Section 13557 of the Vehicle Code is amended to read:

13557.
 (a) The department shall review the determination made pursuant to Section 13353, 13353.1, or 13353.2 relating to a person who has received a notice of an order of suspension or revocation of the person’s privilege to operate a motor vehicle pursuant to Section 13353, 13353.1, 13353.2, 13382, or 23612,. The department shall consider the sworn report submitted by the peace officer pursuant to Section 23612 or 13380 and any other evidence accompanying the report.
(b) (1) If the department determines in the review of a determination made under Section 13353 or 13353.1, by a preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation:
(A) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, 23153, or 23154.
(B) The person was placed under arrest or, if the alleged violation was of Section 23136, that the person was lawfully detained.
(C) The person refused or failed to complete the chemical test or tests after being requested by a peace officer.
(D) Except for the persons described in Section 23612 who are incapable of refusing, the person had been told that his or her their privilege to operate a motor vehicle would be suspended or revoked if he or she they refused to submit to, and complete, the required testing.
(2) If the department determines, by a preponderance of the evidence, that any of the facts required under paragraph (1) were not proven, the department shall rescind the order of suspension or revocation and, if the person is otherwise eligible, return or reissue the person’s driver’s license pursuant to Section 13551. The determination of the department upon administrative review is final unless a hearing is requested pursuant to Section 13558.
(3) If the department determines in the review of a determination made under Section 13353.2, by the preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation, or if the person is under 21 years of age and does not yet have a driver’s license, the department shall delay issuance of that license for one year:
(A) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, 23153, or 23154.
(B) The person was placed under arrest or, if the alleged violation was of Section 23136, the person was lawfully detained.
(C) The person was driving a motor vehicle under any of the following circumstances:
(i) When the person had 0.08 0.05 percent or more, by weight, of alcohol in his or her their blood.

(ii)When the person was under 21 years of age and had 0.05 percent or more, by weight, of alcohol in his or her blood.

(iii)

(ii) When the person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test.

(iv)

(iii) When the person was driving a vehicle that requires a commercial driver’s license or the person was driving a motor vehicle when a passenger for hire was a passenger in the vehicle, and the person had 0.04 percent or more, by weight, of alcohol in his or her their blood.

(v)

(iv) When the person was on probation for a violation of Section 23152 or 23153 and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.
(4) If the department determines that any of those facts required under paragraph (3) were not proven by the preponderance of the evidence, the department shall rescind the order of suspension or revocation and, if the person is otherwise eligible, return or reissue the person’s driver’s license pursuant to Section 13551. For persons under 21 years of age, the determination of the department pursuant to paragraph (3) is final unless a hearing is requested within 10 days of the determination, which hearing shall be conducted according to Section 13558. For persons over 21 years of age, the determination of the department upon administrative review is final unless a hearing is requested pursuant to Section 13558.
(c) The department shall make the determination upon administrative review before the effective date of the order of suspension or revocation.
(d) The administrative review does not stay the suspension or revocation of a person’s privilege to operate a motor vehicle. If the department is unable to make a determination on administrative review within the time limit in subdivision (c), the department shall stay the effective date of the order of suspension or revocation pending the determination and, if the person’s driver’s license has been taken by the peace officer pursuant to Section 13382, 13388, 13389, or 23612, the department shall notify the person before the expiration date of the temporary permit issued pursuant to Section 13382, 13388, 13389, or 23612, or the expiration date of any previous extension issued pursuant to this subdivision, in a form that permits the person to establish to any peace officer that his or her their privilege to operate a motor vehicle is not suspended or revoked.
(e) A person may request and be granted a hearing pursuant to Section 13558 without first receiving the results of an administrative review pursuant to this section. After receiving a request for a hearing, the department is not required to conduct an administrative review of the same matter pursuant to this section.
(f) A determination of facts by the department under this section has no collateral estoppel effect on a subsequent criminal prosecution and does not preclude litigation of those same facts in the criminal proceeding.

SEC. 4.

 Section 13954 of the Vehicle Code is amended to read:

13954.
 (a) Notwithstanding any other provision of this code, the department immediately shall suspend or revoke the driving privilege of a person who the department has reasonable cause to believe was in some manner involved in an accident while operating a motor vehicle under the following circumstances at the time of the accident:
(1) The person had 0.08 0.05 percent or more, by weight, of alcohol in his or her their blood.
(2) He or she The person proximately caused the accident as a result of an act prohibited, or the neglect of any duty imposed, by law.
(3) The accident occurred within five years of the date of a violation of subdivision (b) of Section 191.5 of the Penal Code that resulted in a conviction.
(b) If an accident described in subdivision (a) does not result in a conviction or finding of a violation of Section 23152 or 23153, the department shall suspend the driving privilege under this section for one year from the date of commencement of the original suspension. After the one-year suspension period, the driving privilege may be reinstated if evidence establishes to the satisfaction of the department that no grounds exist that would authorize the refusal to issue a license and that reinstatement of the driving privilege would not jeopardize the safety of the person or other persons upon the highways, and if the person gives proof of financial responsibility, as defined in Section 16430.
(c) If an accident described in subdivision (a) does result in a conviction or finding of a violation of Section 23152 or 23153, the department shall revoke the driving privilege under this section for three years from the date of commencement of the original revocation. After the three-year revocation period, the driving privilege may be reinstated if evidence establishes to the satisfaction of the department that no grounds exist that would authorize the refusal to issue a license and that reinstatement of the driving privilege would not jeopardize the safety of the person or other persons upon the highways, and if the person gives proof of financial responsibility.
(d) Any revocation action under subdivision (c) shall be imposed as follows:
(1) If the accident results in a first conviction of a violation of Section 23152 or 23153, or if the person was convicted of a separate violation of Section 23152 or 23153 that occurred within five years of the accident, the period of revocation under subdivision (c) shall be concurrent with any period of restriction, suspension, or revocation imposed under Section 13352, 13352.4, or 13352.5.
(2) If the person was convicted of two or more separate violations of Section 23152 or 23153, or both, that occurred within five years of the accident, the period of revocation under subdivision (c) shall be cumulative and shall be imposed consecutively with any period of restriction, suspension, or revocation imposed under Section 13352 or 13352.5.
(e) The department immediately shall notify the person in writing of the action taken and, upon the person’s request in writing and within 15 days from the date of receipt of that request, shall grant the person an opportunity for a hearing in the same manner and under the same conditions as provided in Article 3 (commencing with Section 14100) of Chapter 3, except as otherwise provided in this section. For purposes of this section, the scope of the hearing shall cover the following issues:
(1) Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23152 or 23153.
(2) Whether the person had been placed under lawful arrest.
(3) Whether a chemical test of the person’s blood, breath, or urine indicated that the blood-alcohol level was 0.08 0.05 percent or more, by weight, at the time of testing.
If the department determines, upon a hearing of the matter, that the person had not been placed under lawful arrest, or that a chemical test of the person’s blood, breath, or urine did not indicate a blood-alcohol level of 0.08 0.05 percent or more, by weight, at the time of testing, the suspension or revocation shall be terminated immediately.
(f) This section applies if the accident occurred on or after January 1, 1990, without regard for the dates of the violations referred to in subdivisions (a) and (d).
(g) Notwithstanding subdivision (f), if a person’s privilege to operate a motor vehicle is required to be suspended or revoked pursuant to this section as it read before January 1, 1990, as a result of an accident that occurred before January 1, 1990, the privilege shall be suspended or revoked pursuant to this section as it read before January 1, 1990.

SEC. 5.

 Section 23152 of the Vehicle Code is amended to read:

23152.
 (a) It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.
(b) It is unlawful for a person who has 0.08 0.05 percent or more, by weight, of alcohol in his or her their blood to drive a vehicle.
For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 0.05 percent or more, by weight, of alcohol in his or her their blood at the time of driving the vehicle if the person had 0.08 0.05 percent or more, by weight, of alcohol in his or her their blood at the time of the performance of a chemical test within three hours after the driving.
(c) It is unlawful for a person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.
(d) It is unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her their blood to drive a commercial motor vehicle, as defined in Section 15210. In a prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her their blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her their blood at the time of the performance of a chemical test within three hours after the driving.
(e) Commencing July 1, 2018, it shall be unlawful for a person who has 0.04 percent or more, by weight, of alcohol in his or her their blood to drive a motor vehicle when a passenger for hire is a passenger in the vehicle at the time of the offense. For purposes of this subdivision, “passenger for hire” means a passenger for whom consideration is contributed or expected as a condition of carriage in the vehicle, whether directly or indirectly flowing to the owner, operator, agent, or any other person having an interest in the vehicle. In a prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her their blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her their blood at the time of the performance of a chemical test within three hours after the driving.
(f) It is unlawful for a person who is under the influence of any drug to drive a vehicle.
(g) It is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.

SEC. 6.

 Section 23153 of the Vehicle Code is amended to read:

23153.
 (a) It is unlawful for a 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, which act or neglect proximately causes bodily injury to any person other than the driver.
(b) It is unlawful for a person, while having 0.08 0.05 percent or more, by weight, of alcohol in his or her their blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.
In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 0.05 percent or more, by weight, of alcohol in his or her their blood at the time of driving the vehicle if the person had 0.08 0.05 percent or more, by weight, of alcohol in his or her their blood at the time of the performance of a chemical test within three hours after driving.
(c) In proving the person neglected any duty imposed by law in driving the vehicle, it is not necessary to prove that any specific section of this code was violated.
(d) It is unlawful for a person, while having 0.04 percent or more, by weight, of alcohol in his or her their blood to drive a commercial motor vehicle, as defined in Section 15210 and concurrently to do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. In a prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her their blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her their blood at the time of performance of a chemical test within three hours after driving.
(e) Commencing July 1, 2018, it shall be unlawful for a person, while having 0.04 percent or more, by weight, of alcohol in his or her their blood to drive a motor vehicle when a passenger for hire is a passenger in the vehicle at the time of the offense, and concurrently to do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. For purposes of this subdivision, “passenger for hire” means a passenger for whom consideration is contributed or expected as a condition of carriage in the vehicle, whether directly or indirectly flowing to the owner, operator, agent, or any other person having an interest in the vehicle. In a prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her their blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her their blood at the time of performance of a chemical test within three hours after driving.
(f) It is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.
(g) It is unlawful for a person, while under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

SEC. 7.

 Section 23610 of the Vehicle Code is amended to read:

23610.
 (a) Upon the trial of any criminal action, or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of an alcoholic beverage in violation of subdivision (a) of Section 23152 or subdivision (a) of Section 23153, the amount of alcohol in the person’s blood at the time of the test as shown by chemical analysis of that person’s blood, breath, or urine shall give rise to the following presumptions affecting the burden of proof:
(1) If there was at that time less than 0.05 percent, by weight, of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.

(2)If there was at that time 0.05 percent or more but less than 0.08 percent, by weight, of alcohol in the person’s blood, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but the fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense.

(3)

(2) If there was at that time 0.08 0.05 percent or more, by weight, of alcohol in the person’s blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense.
(b) Percent, by weight, of alcohol in the person’s blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
(c) This section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the person ingested any alcoholic beverage or was under the influence of an alcoholic beverage at the time of the alleged offense.

SEC. 8.

 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.