California DUI Law: Too Harsh and Not Harsh Enough

Whenever I hear about a horrific car accident involving a drunk driver, it always seems as though it’s not that person’s first brush with the alcohol police. A typical news report recounts the details of the fatal, or at least very serious, accident that injured innocent bystanders or fellow motorists, and then goes on to reveal how many previous DUI convictions the drunk driver has. A thorough reporter will also have discovered which ineffective sentences the drunk driver has served in the past.

Could it just be that I only happen to stumble upon the news articles about recidivist drunk drivers? Or, perhaps the LA Times only reports on this particular type of sensational and frustrating story? I don’t think so. I think recidivist drunk driving in California is the rule, and not the exception.

One-off DUI v. Habitual DUI offender

By any account, California treats first-time drunk drivers with kid gloves. Although this person has exhibited behavior akin to reckless disregard for the safety of others or attempted manslaughter, he or she is likely to get off with a fine, community service, alcohol “education” classes, and unsupervised probation. The driver typically loses his or her license for a relatively short number of months. But, maybe these drivers actually should be treated with leniency. I’m not convinced that each and every person who gets a DUI is an alcoholic and, if this is true, there will be some number of people who learn their lesson the first time and never drive under the influence of alcohol again.

However, this article isn’t about all drunk drivers. I’m particularly interested in those people who don’t seem to “get it” – those who continue to drink and drive even after been arrested for a DUI.

Drunk driving: criminal behavior or consequences of untreated alcoholism?

In 2000, California voters took to the polls and decided that some drug-addicted criminals deserve a chance to clean up their act before incurring a criminal record. The passing of Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (SACPA), created a drug diversion program that offers certain drug addicts the opportunity to attend an intensive drug treatment program in exchange for having their drug charges dismissed. Clearly, the voters realized that crime committed as a direct result of drug addiction will only be stopped if the addiction stops. However, although the same could be said for alcoholic drivers, no similar diversion program currently exists in California for them. Instead of being offered real treatment for their problems, California alcoholics are simply punished for driving while intoxicated.

While drug addicts can find themselves in Court for any number of charges, such as theft, drug dealing, and drug possession, alcoholics usually enter the criminal justice system only when they get behind the wheel of a vehicle. Why are drug addicts offered treatment, but alcoholics aren’t? Perhaps because drug addicts rarely endanger the lives of others; they usually only hurt themselves. Or, maybe the average citizen has learned that drug addiction is an illness, but doesn’t regard alcoholism in the same light.

However, if we aren’t going to offer alcoholics the incentive to get treatment, we must at least make the punishment for drunk driving harsh enough that some may actually stop driving under the influence for fear of what will happen to them if they are caught again. California’s current attitude toward drunk drivers — not offering treatment and imposing weak punishments — is a recipe for disaster. We offer our drunk drivers only ineffective negative consequences for bad acts when positive consequences for effective alcohol treatment would go a lot further at protecting the general public from drunk drivers.

Although successive drunk driving offenses do carry potentially stricter and harsher sentences, an offender can reset the DUI ticker back to zero if enough years (currently ten years) have passed between incidents. This allows a chronic drunk driver to escape harsher punishment for having multiple offenses. Under current California DUI law, a drunk driver faces jail time for up to three drunk driving convictions in ten years. But, unless someone gets hurt, jail time for a first or even second DUI is rare. And it is only after the drunk driver is arrested for a forth DUI that prosecutors can elect to charge the driver with a felony, making him eligible for state prison.

Perhaps a part of the recidivist DUI problem also stems from the fact that very few drunk drivers ever get caught. A rational actor may make a conscious decision to take a chance behind the wheel, given the fact that they are likely to evade detection.
Thus, assuming that California voters are a long way from offering DUI offenders any sort of incentive for intensive treatment of their alcohol abuse issues, any effective solution to the drunk driving problem needs to include both increasing sanctions for driving under the influence as well as increasing the opportunities for detection.

New California DUI law proposed

At least one lawmaker in California thinks that DUI sanctions are not tough enough and is working to change that. Assemblyman Jerry Hill (D-San Mateo) has proposed a bill that would allow judges to permanently revoke a drunk driver’s license after the third DUI conviction, as well as eliminate the ten-year limitation on prior offenses. This means that judges would be able to consider a driver’s lifetime driving record when deciding on the proper sentence.

Hill’s bill has stalled in Committee over complaints that it would cost the state too much money and increase the burden on the already over-burdened prison system. An analysis of the proposal revealed that the bill would cost taxpayers between $11 million and $28 million (provided the prisons need to be expanded). Lawmakers also point out that the federal government has ordered the State of California to reduce its prison population. The elimination of the ten-year “look back” period is the provision of the bill that is the most costly, as it would increase the number of drivers eligible for felony DUI charges; this would result in more people being sentenced to serve actual time in jail.

California was faced with a similar fiscal problem when handling the punishment of drug addicts. The solution lawmakers came up with? Sent them to treatment instead of jail! But, I digress.

The American Civil Liberties Union (ACLU) and California DUI Lawyers Association have come out against the bill, arguing that substances abusers will be less incentivized to deal with substance abuse issues if there is no chance that they will ever get their driver’s license back. I finally agree with the ACLU about something.

For his part, Assemblyman Hill has indicated that there is no room for compromise on elimination of the ten-year look-back period, but that he is willing to entertain relaxing the part of the bill that allows for permanent revocation of a driver’s license. He has also expressed willingness to consider adding a “second-chance” provision for drunk drivers who have participated in substance abuse treatment and have stayed out of trouble. This would be the first step in recognizing that recidivist DUI offenders should be treated the same as drug addicted criminals – incentivizing them to get treatment in order maintain a clean criminal record. Sounds good as a talking point, but I won’t hold my breath.

Millie Cavanaugh, Esq., is an attorney licensed to practice law in California and Massachusetts.

http://www.mercurynews.com/peninsula/ci_15010307?nclick_check=1