AB 1950: Is 5 Years of Probation for Felony DUI OK?
Over the last several years, there have been many changes to the sentencing laws in California. One of the laws that has perhaps affected the most people is Assembly Bill (AB) 1950, which became effective on January 1, 2021. This new law amended Penal Code §§ 1203a and 1203.1 to limit the maximum term of probation for felony and misdemeanor offenses, with certain exceptions.
Before AB 1950 became effective, Penal Code § 1203.1 provided that a judge could impose felony probation for a period “not exceeding the maximum term of the sentence” except “where the maximum possible term of the term was five years or less,” in which case probation could “continue for not over five years.” Former § 1203.1(a); see People v. Forester (2022) 78 Cal. App. 5th 447, 451-452. In other words, under prior law, the maximum term of probation could not exceed five years or the maximum possible sentence of imprisonment, whichever was longer.
As amended by AB 1950, Penal Code § 1203.1 now states that felony probation “may continue for a period of time not exceeding two years.” Penal Code § 1203.1(a). However, there are several exceptions to the two-year maximum term.
Penal Code § 1203.1(l) provides: “The two-year probation limit in subdivision (a) shall not apply to: (1) an offense listed in subdivision (c) of section 667.5 and an offense that includes specific probation lengths within its provisions. For these offenses, the court, or judge thereof, in the order granting probation, may suspend the imposing of the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence and under conditions as it shall determine.”
This exception applies to two separate categories of felonies: (1) violent felonies as defined in § 667.5(c); and (2) felonies for which some other law specifies a specific probation length, i.e., crimes involving domestic violence must have a minimum probation term of three years.
AB 1950 is retroactive to those who are currently on probation.
How this applies to a felony DUI is often misunderstood, so this article summarizes a recent Fourth Appellate Court opinion that addressed this.
On November 8, 2018, in San Diego County, Ryan Kite pulled out from a parking lot into traffic without first coming to a stop and almost struck a motorcyclist, D.P., who slammed on his brakes and fell off his motorcycle. Mr. Kite did not hit the motorcyclist. Mr. Kite drove away from the scene.
D.P. got back on his motorcycle, called 911 and caught up to Mr. Kite, driving a truck, and signaled for Mr. Kite to pull over. At first, Mr. Kite did not stop, but later did.
Police arrived at the scene and determined Mr. Kite had a blood alcohol content (BAC) of between 0.14% and 0.22%. The motorcyclist, D.P., suffered a spinal compression fracture from falling off his motorcycle while avoiding a collision with Mr. Kite.
The San Diego County District Attorney’s office charged Mr. Kite with felony DUI causing injury (Vehicle Code § 23153(a); driving with measurable blood alcohol content causing injury (Vehicle Code § 23153(b)); and hit an run (Vehicle Code § 20001(a).
A jury convicted Mr. Kite of all three counts.
At sentencing, the judge place Mr. Kite on five years of formal probation. After AB 1950 was passed into law, Mr. Kite appealed the probation length to the Fourth Appellate District Court. Mr. Kite said it had to be reduced to three years under AB 1950.
The Fourth Appellate Court concluded that the maximum probation term for violation of Vehicle Code §§ 23153 and 20001 must be reduced to three years and eight months. Three years is the maximum prison term for a violation of 23153 and one-third the mid-term of the two year term for a violation of 20001 would then be added under Penal Code § 1170.1(a).
We bring this summary to the reader’s attention because such charges are common in court and it is good to know exactly what is the correct probation term.
For more information about Assembly Bill (AB) 1950 issues, please click on the following articles:
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