BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair A
2005-2006 Regular Session B
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AB 2174 (Villines) 4
As Amended June 21, 2006
Hearing date: June 27, 2006
Penal Code VOTE ONLY
MK:mc
CRIMINAL PROCEDURE: DEFENDANT'S APPEARANCE
HISTORY
Source: Author
Prior Legislation: None
Support: California District Attorneys Association; Office of
the Attorney General; City of Daly City; Fresno Police
Officers' Association; City of Visalia; City of Clovis;
Mothers Against Drunk Driving; City of San Luis Obispo;
City of Merced; Los Angeles County District Attorney's
Office; City of Monterey Park; Peace Officers Research
Association of California; League of California Cities;
California Peace Officers' Association; California
Police Chiefs' Association; California Judges
Association
Opposition:California DUI Lawyers Association; California
Attorneys for Criminal Justice; Burglin Law Offices;
Los Angeles Criminal Courts Bar Association (to prior
version); One individual
Assembly Floor Vote: Ayes 69 - Noes 4
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AB 2174 (Villines)
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KEY ISSUE
SHOULD THE COURT BE ABLE TO ORDER A DEFENDANT IN A MISDEMEANOR DUI
TO APPEAR AT THE ARRAIGNMENT, THE TIME OF PLEA OR THE SENTENCING?
PURPOSE
The purpose of this bill is to allow the court to order the
defendant in a misdemeanor DUI case to appear at the
arraignment, the time of plea or sentencing.
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
blood to drive a vehicle. (Vehicle Code 2152(b).)
Existing law provides that a person convicted of a first DUI is
subject to the following penalties when given probation:
48 hours to 6 months in jail.
$390 to $1,000 plus 250% penalty assessments.
6 month license suspension.
3-month treatment program with a 9 month program if the BAC is
more than .20%. (Vehicle Code 23538.)
Existing law provides that additional penalties may also apply
to a person convicted of a first DUI including:
Restitution fine of $100-$1,000. (Penal Code 1202.4.)
Vehicle may be impounded for up to 30 days. (Vehicle Code
23594.)
Ignition Interlock may be required to be installed for a
period not to exceed 3 years. (Vehicle Code 23575.)
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AB 2174 (Villines)
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If the defendant refused to take the blood alcohol test, then
a mandatory 48 hours in jail. (Vehicle Code 15300(a)(9),
15302(i).)
Existing law provides that a person who is convicted of a second
DUI within ten years is subject to the following penalties when
given probation:
96 hours to 1 year in county jail.
$390 to $1,000 fine plus 250% penalty assessments.
Restricted license for driving to and from work and treatment
program.
18 or 30 month treatment program. (Vehicle Code 23542.)
Existing law provides that additional penalties also apply to a
person convicted of a second DUI within ten years including:
Restitution fine of $100-$1,000. (Penal Code 1202.4.)
Mandatory impound of the vehicle for up to 30 days if the
offense occurred within 5 years of a prior DUI unless
"interest of justice" exception is found (defendant must be
registered owner of vehicle used in the offense). (Vehicle
Code 23594.)
The court may order installation of an ignition interlock
device as a condition of probation. (Vehicle Code 23575(1).)
If the person refuses to take a blood-alcohol test, a person
is subject to 96 hours in county jail whether or not probation
is imposed. (Vehicle Code 23577.)
Existing law provides that a person who is convicted of a third
DUI within ten years is subject to the following penalties when
given probation:
120 days to 1 year in county jail. (Vehicle Code 23548.)
$390 to $1,000 fine plus 240% penalty assessments. (Vehicle
Code 23548.)
3 year revocation of driver's license. (Vehicle Code
13352(a)(5).)
18 or 30 month treatment program. (Vehicle Code 23548.)
Existing law provides that additional penalties also apply to a
person convicted of a third DUI within ten years including:
Restitution fine of $100-$1,000. (Penal Code 1202.4.)
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AB 2174 (Villines)
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The court must impound of the vehicle for up to 90 days if the
offense occurred within 2 years of a prior DUI unless
"interest of justice" exception is found (defendant must be
registered owner of vehicle used in the offense. (Vehicle
Code 23594.)
The court may order forfeiture of vehicle (defendant must be
registered owner of vehicle used in the offense. (Vehicle
Code 23596.)
The court may order installation of an ignition interlock
device as a condition of probation. (Vehicle Code 23575(1).)
The Court must designate defendant as a habitual traffic
offender for three years. (Vehicle Code 13350(b),
14601.3(e)(3).)
If the person refuses to take a blood-alcohol test, a person
is subject to 10 days in county jail whether or not probation
is imposed. (Vehicle Code 23577.)
Existing law provides that in all cases in which the accused is
charged with a misdemeanor only, he or she may appear by counsel
only, except as specified. (Penal Code 977(a)(1).)
Existing law provides that if the accused is charged with a
misdemeanor domestic violence offense, the accused shall be
present for arraignment and sentencing and at any time during
the proceedings when ordered by the court for the purpose of
being informed of the conditions of a protective order issued.
(Penal Code 977(a)(2).)
Existing law provides that in all cases in which a felony is
charged, the accused shall be present at the arraignment, at the
time of plea, during the preliminary hearing, during those
portions of the trial when evidence is taken before the trier of
fact, and at the time of the imposition of sentence. The
accused shall be personally present at all other proceedings
unless he or she shall, with leave of court, execute in open
court, a written waiver of his or her right to be personally
present, as specified. If the accused agrees, the initial court
appearance, arraignment, and plea may be by video, as specified.
(Penal Code 977(b)(1).)
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AB 2174 (Villines)
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This bill allows a court to order a defendant charged with a
misdemeanor offense involving driving under the influence to be
present at the arraignment, time of plea or sentencing.
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COMMENTS
1.Need for This Bill
According to the author:
Currently Penal Code Section 977 (a) allows a defendant
to have an attorney appear for him/her on misdemeanor
offenses without having the defendant personally appear
in court. The only exceptions to this requirement are
found in subsection (b) which exempts domestic violence
misdemeanors and violations of PC 273.6 (violation of a
court order to prevent harassment). With the exception
of domestic violence offenses and PC 273.6 violations an
attorney can appear for a defendant charged with a
misdemeanor without the defendant's personal presence in
court.
Vehicle Code Section 23592 requires that a judge advise
a person convicted of a misdemeanor DUI of the dangers
of driving under the influence and that if they continue
to drink and drive and kill another individual, they
could be charged with murder.
There is a current provision in the law that the
advisory may be included in a plea form signed by the
defendant and provided to the court without the
defendant's personal presence in court.
However, this presents the same concerns that led to the
domestic violence exception; "that not requiring the
defendant's personal presence to hear the terms of
sentencing ads to the uncertainty of knowing if he or
she clearly understands the advisory." At best -the
court is asking the attorney to advise the defendant
with no requirement of proof that the defendant was
indeed advised or completely understands the conditions
of his or her sentencing.
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AB 2174 (Villines)
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Millions of dollars are spent each year to educate our
youth about the perils of drinking and driving ? there
are grants to local law enforcement to support DUI check
points ? flashing messages on highway safety signs ask
other drivers to report drunk drivers. Yet, for all
that is done to emphasize the seriousness of this
offense; the message sent to individuals is that they
don't have to worry about showing up in court to
personally answer for their DUI violation.
In addition making sure a defendant understands his
sentence, requiring a defendant's presence at sentencing
in DUI cases would demand personal accountability for
one's actions and would be a further deterrent to all
offenders if they understood that their personal
presence in the courtroom would be required for DUI
violations.
2. Appearance in Court
Existing law allows defendants in misdemeanor actions to appear
in court by counsel at arraignment, time of plea and sentencing.
The only existing exception is for misdemeanor cases involving
domestic violence. This bill creates an additional exception by
allowing a judge to order a defendant in a driving under the
influence (DUI) case to appear in person at the arraignment,
time of plea or sentencing.
The author indicates that the existing practice of not having
the defendant appear in person somehow takes away from the
seriousness of the offense and requiring a defendant to appear
will be a further deterrent to all offenders. However, the
number of sanctions imposed on even a first time DUI in
California will give a clear indication to any defendant that
the matter is taken seriously. With fines, restitution and
other license related costs a first time DUI can cost an
individual more than $6,000 not including the cost of an
attorney or long term insurance costs. In addition a person
faces license restrictions and cannot get a full license
AB 2174 (Villines)
Page 8
reinstated until he or she has completed a licensed drinking
driver treatment program.
As noted above, at the time of sentencing, a defendant will be
facing licensing restrictions which can make it difficult for a
defendant to get to court for what will be a brief hearing. It
may also cause them to miss a day of work, which could
complicate their ability to pay the fines or the cost of
attending the program.
3. Amendments Since Committee
As discussed in the Committee hearing on June 20, 2006, this
bill has now been amended to give the court discretion to order
a misdemeanor DUI defendant to appear in person at the
arraignment, time of plea or sentencing.
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