CONTENTS:

Provides an additional prison term or term of imprisonment for certain repeat OMVI or OMVUAC offenders

State Fiscal Highlights

STATE FUND	FY 2004	FY 2005			FUTURE YEARS
General Revenue Fund (GRF)
Revenues	Potential minimal gain		Potential minimal gain	Potential minimal annual gain
Expenditures	Up to $28,000 or more increase		Up to $198,800 or more increase	Up to $246,400 or more increase in FY 2006, increasing annually thereafter before stabilizing at up to $478,800 or more in FY 2013 and annually thereafter
Victims of Crime/Reparations Fund (Fund 402)
Revenues	Potential negligible gain		Potential negligible gain	Potential negligible annual gain
Expenditures	- 0 -		- 0 -	- 0 -

Note: The state fiscal year is July 1 through June 30. For example, FY 2004 is July 1, 2003 – June 30, 2004.

· Incarceration expenditures. As a result of the bill, offenders will “stack up” in prison causing the Department of Rehabilitation and Correction’s (DRC) inmate population and related incarceration costs to increase annually before stabilizing roughly ten years after the bill’s effective date. Within one year of the bill’s effective date, DRC’s annual incarceration costs will increase by up to $28,000 or more. Within two years of the bill’s effective date, DRC’s annual incarceration costs will increase by up to $198,800 or more. Department of Rehabilitation and Correction’s annual incarceration costs will then continue to rise until roughly ten years after the bill’s effective date and then stabilize at an annual increase of up to $478,800 or more.

· GRF revenues. A portion of the fine revenues imposed on an OMVI offender accrues to the state. The bill, however, will not produce new OMVI arrests and convictions. Instead, in a relatively few cases involving an offender with multiple prior OMVI convictions, the charge will be elevated to the felony level. In these cases, the total amount of the fines levied will increase, which presumably increases the state’s portion of that additional fine revenue. Given the relatively few number of affected cases and the difficulties of collection, the additional OMVI fine revenue generated for the state appears unlikely to exceed minimal annually.

· Fund 402 revenues. As a result of a relatively small annual number of additional felony OMVI convictions, the Victims of Crime/Reparations Fund (Fund 402) may gain a negligible amount of additional locally collected state court cost revenue annually.

Local Fiscal Highlights

LOCAL GOVERNMENT		FY 2003		FY 2004		FUTURE YEARS
Counties
Revenues	Potential minimal gain		Potential minimal gain		Potential minimal annual gain
Expenditures	Potential minimal increase		Potential minimal increase		Potential minimal annual increase
Municipalities
Revenues	Potential minimal loss		Potential minimal loss		Potential minimal annual loss
Expenditures	Potential minimal decrease		Potential minimal decrease		Potential minimal annual decrease

Note: For most local governments, the fiscal year is the calendar year. The school district fiscal year is July 1 through June 30.

· County criminal justice systems. As a result of the bill’s changes to the Driving Under the Influence Law, it is possible that county criminal justice system costs related to investigating, prosecuting, adjudicating, defending (if the offender is indigent), and sanctioning certain offenders might increase. It appears though that the number of felony cases that could be affected annually in any given county will be relatively small. Thus, any increase in annual county expenditures related to resolving certain OMVI cases would likely be no more than minimal. It is also likely that some offenders will be more seriously sanctioned, which creates the opportunity for counties to gain court cost and fine revenues. As the number of cases that would be affected by this possibility appears to be relatively small, the amount of court cost and fine revenues that any given county might gain annually is not likely to exceed minimal on a regular basis.

· Municipal criminal justice systems. The bill’s changes to the Driving Under the Influence Law will likely elevate a relatively small number of OMVI cases that would have been misdemeanors under current law to the status of felonies, thus shifting such cases out of municipal courts into the more expensive felony component of county criminal justice systems. Such a result could simultaneously: (1) decrease municipal criminal justice expenditures related to investigating, prosecuting, adjudicating, defending (if the offender is indigent), and sanctioning offenders, and (2) cause a loss in municipal court cost and fine revenues. As the likely number of cases that will be affected by the bill’s provisions appears to be relatively small, any resulting changes in annual municipal criminal justice expenditures and revenues for any given local jurisdiction would not be likely to exceed minimal.

Detailed Fiscal Analysis

Current law

OMVI. Under existing law, state OMVI generally is a misdemeanor of the first degree or an unclassified misdemeanor, and the offender generally must be imprisoned in a local correctional facility for a specified period of time. However, if an offender, within the preceding six years, previously has been convicted three or more times of any of the predicate offenses, state OMVI is a felony of the fourth degree, and the offender must be imprisoned for a specified period of time in either a local jail or in prison. If the offender, at any time in the past, previously has been convicted of state OMVI in circumstances in which it is a felony, state OMVI is a felony of the third degree, and the offender must be sentenced to a prison term. In addition to the terms of imprisonment imposed, the court sentencing an offender for state OMVI must impose a mandatory fine. The amount of the fine depends upon the number of prior convictions of the offender.

OMVUAC. Existing law prohibits a person under 21 years of age from operating a motor vehicle if the person is legally intoxicated. Such an offense commonly is referred to as "state OMVUAC." State OMVUAC generally is a misdemeanor of the fourth degree, provided that if, within the preceding year, the offender previously has been convicted of any of the predicate offenses, it is a misdemeanor of the third degree. In addition to any other sanction imposed, the court must suspend the offender's driver's license for a specified period of time. Existing law does not require a mandatory term of imprisonment for state OMVUAC; rather, under the general Misdemeanor Sentencing Law, a court sentencing an offender convicted of state OMVUAC must sentence the offender to a term of imprisonment, a fine, or both, and generally may suspend any term of imprisonment so imposed.

Operation of the bill

OMVI. Under the bill, the current six-year window required for a felony OMVI conviction is eliminated. Any offender, who accumulates five or more OMVI convictions, regardless of the time frame or how long ago those convictions occurred, would face a felony of the fourth degree on the sixth and all subsequent OMVI offenses. In addition to eliminating the six-year window for felony OMVI convictions, the bill provides for an offender with six or more convictions to receive an additional mandatory one to five years in prison to be served consecutive to any other sentence imposed for the offense if convicted of or pleading guilty to a “State OMVI Five Prior Conviction Specification.”

OMVUAC. Also under the bill, if an offender is convicted of or pleads guilty to state OMVUAC and also is convicted of or pleads guilty to a "State OMVUAC Five Prior Conviction Specification," and if the court imposes a term of imprisonment for the underlying offense, the court must impose upon the offender an additional definite term of imprisonment of not more than six months.

State fiscal effects

From a fiscal perspective, the bill will affect the state most notably in terms of the incarceration costs associated with the following two groups of offenders:

(1) Offenders prison-bound for a third degree felony as the result of six or more OMVI convictions under current law will, under the bill, face an additional mandatory prison term of one to five years to be served consecutively to and prior to the prison term imposed for the underlying offense and consecutively to any other mandatory prison term imposed in relation to the offense. This group of offenders, already prison bound regardless of the bill at hand, will serve longer prison terms if the bill is enacted.

(2) Offenders who have more than five OMVI convictions, yet not four of these convictions have occurred within the six-year window specified under current law, will have avoided felony charges under current law, but under the bill, would face a third- or fourth-degree felony OMVI offense.

(1) Certain prison-bound OMVI offenders under current law

The key question to estimating the effect on state incarceration costs is how many additional years a judge will impose on certain OMVI offenders that are already prison-bound under current law. The minimum additional mandatory prison term would be one year and the maximum would be five years. The Department of Rehabilitation and Correction (DRC) conducted an analysis of this question based on the sentencing patterns for those third-degree felony OMVI offenders currently being sentenced to prison.

In 2002, DRC received approximately 75 third-degree felony OMVI offenders. Around 80%, or 60, of these offenders received prison terms of anywhere from one year to three years. The Department of Rehabilitation and Correction estimates that: (1) a judge who imposes a prison term of only one year or two years on such an offender under current law would likely impose, on average, only one mandatory additional year under the bill, and (2) a judge who imposes a prison term of three years on such an offender under current law would likely impose, on average, an additional mandatory year and a half. Based on this estimate, and the stacking effect on the prison population the bill triggers, it appears that DRC will need approximately 130 additional inmate beds roughly ten years after the bill’s effective date.

The Department of Rehabilitation and Correction also received about 12 fourth-degree felony OMVI offenders per month during 2002. If only two of these fourth-degree felony offenders are affected by the bill’s additional mandatory prison term and each receives one additional year, it appears that DRC will need approximately 24 additional inmate beds roughly two years after the bill’s effective date.

Since this relatively small group of third- and fourth-degree OMVI offenders are already prison-bound under current law, the additional annual incarceration costs for DRC associated with the bill’s mandatory additional prison term can probably best be calculated according to the marginal cost per offender, which is currently around $2,800 per year. Accordingly, DRC’s annual incarceration costs associated with this group of third- and fourth-degree OMVI offenders will start to rise by around $142,800 roughly two years after the bill’s effective date before stabilizing at approximately $422,800 roughly ten years after the bill’s effective date. This assumes that judges do not deviate from their currently observed sentencing patterns.

(2) Certain OMVI offenders not prison-bound under current law

The more difficult group of offenders to estimate would be those who have more than five OMVI convictions, yet not four of these convictions have occurred within the six-year window specified under current law. These offenders will have avoided felony charges under current law, but under the bill, would face a third- or fourth-degree felony OMVI offense.

The previously mentioned analysis conducted by DRC also addresses the question of how many new felony-level OMVI offenders may result from the bill and subsequently be sentenced to prison. This would involve the group of OMVI offenders with five or more convictions spread over a period of time outside of the six-year window found in current law and who would currently avoid prison altogether. The Department of Rehabilitation and Correction concludes that: (1) no new or additional felony offenders would be imprisoned as a result of the bill, and (2) there would only be a small number of persons who reach the bill’s threshold of five OMVI convictions without having first hit the four OMVI convictions within the six-year window as established under current law.

Currently, once a driver has four convictions within a six-year period, and is convicted as an OMVI felon, then any subsequent conviction, regardless of the timeframe, is a felony of the third degree. The Department of Rehabilitation and Correction believes that most of these multiple OMVI offenders are being netted under the current law. If a driver currently has at least four OMVI convictions, and has not yet been convicted as a felon under the mechanisms in the existing law, then the offenses are occasional and widely spread out over time.

The Department of Rehabilitation and Correction argues such offenders are small in number, and as a further complicating factor, prosecutorial charging patterns will help keep the number of new felony convictions low. The Department of Rehabilitation and Correction also believes that prosecutors might use the charging specification and additional mandatory prison term as a means of encouraging plea bargains. As an analogy, DRC notes that, since mandatory extra time was introduced with gun specifications, only 25% of those who could be sentenced to a prison term with a gun specification actually were so.

The Department of Rehabilitation and Correction’s perspective aside, there could still be a small number of new felony OMVI offenders sentenced to prison under the bill. Assuming that DRC’s analysis is correct and most of the eligible multiple OMVI offenders are already being netted under the current law and convicted as felons, there are still some offenders with multiple convictions spread out over time thereby avoiding the six-year window in current law.

Data from the Department of Public Safety indicates that, on average since 1980, there are approximately 620 OMVI convictions annually involving offenders with six or more OMVI convictions. Irrespective of plea bargains and the issue of the six-year time frame, some of these offenders, who have currently avoided felony prosecution, will be newly convicted as felons under the bill. This is a very difficult population to predict. If there were as many as ten additional OMVI offenders who would not be convicted as felons under current law, but would be bound for prison each year under the bill, the additional cost to the state would be around $56,000 or so starting roughly two years after the bill’s effective date. This figure assumes these new felony offenders would be given a base prison term of one year and an additional mandatory prison term of one year under the bill.

Stacking effect. As noted, not all of these additional inmates will enter the prison system in the first year of the bill’s enactment. Legislative Service Commission fiscal staff estimates that DRC would see around ten new commitments under the bill within one year of the bill’s effective date, at an additional annual marginal incarceration cost of around $28,000 (10 offenders x $2,800). After this first year, DRC will experience a “stacking effect” from the combination of: (1) certain prison-bound OMVI offenders under current law serving longer sentences, and (2) certain OMVI offenders not prison-bound under current law that would be prison-bound under the bill. As these offenders “stack up” in prison as the result of the bill, the annual additional cost to the state will continue to escalate until the inmate population and related incarceration cost stabilize roughly ten years after the bill’s effective date.

Taking these two groups in account:

Within one year of the bill’s effective date, DRC’s incarceration costs will increase by up to $28,000 or more.
Within two years of the bill’s effective date, DRC’s incarceration costs will increase by up to $198,800 or more.
The increase in DRC’s annual incarceration costs will continue until roughly ten years after the bill’s effective date and then stabilize at up to $478,800 or more annually thereafter.

OMVUAC. The bill also provides for an additional mandatory term of imprisonment of up to six months for an offender convicted of or pleading guilty to five or more OMVUAC offenses. It does not appear that this provision of the bill will create any additional costs for the Department of Youth Services (DYS), which has care and custody of all juveniles committed to the state. Discussions with various prosecutors and juvenile court officials around the state revealed that juveniles with five prior OMVUAC convictions are extremely rare. None of these individuals could recall any such case. Juveniles have a very short window, most likely ages 15 to 18, in which to accumulate five OMVUAC convictions.

Local fiscal effects

The bill’s changes to the Driving Under the Influence Law will likely elevate some cases that would have been misdemeanors under current law to the status of felonies, thus shifting such cases out of municipal and county courts into the more expensive felony component of county criminal justice systems. From the fiscal perspective of local governments, the bill could simultaneously: (1) increase county criminal justice expenditures related to investigating, prosecuting, adjudicating, defending (if the offender is indigent), and sanctioning certain offenders, while decreasing analogous municipal criminal justice expenditures, and (2) generate additional court cost and fine revenues for counties, while causing a loss in analogous municipal court cost and fine revenues. As the likely number of cases that will be affected by these changes in the bill appears to be relatively small, any resulting variations in annual county and municipal criminal justice expenditures and revenues for any given local jurisdiction would not be likely to exceed minimal.

LSC fiscal staff: Joseph Rogers, Budget Analyst

HB0163IN

BILL:	H.B. 163		DATE:	May 20, 2003
STATUS:	As Introduced		SPONSOR:	Rep. Oelslager
LOCAL IMPACT STATEMENT REQUIRED:		No —	Minimal cost