                      TO BE PUBLISHED IN THE OFFICIAL REPORTS


                           OFFICE OF THE ATTORNEY GENERAL

                                     State of California


                                      DANIEL E. LUNGREN

                                        Attorney General


                          ______________________________________

                    OPINION          :
                                     :          No. 91-902
                  of                 :
                                     :          July 15, 1992
        DANIEL E. LUNGREN            :

           Attorney General          :

                                     :

         CLAYTON P. ROCHE            :

        Deputy Attorney General      :

                                     :

______________________________________________________________________________


               THE HONORABLE MAX E. ROBINSON, COUNTY COUNSEL, FRESNO
COUNTY, has requested our opinion on the following questions concerning the costs of chemical
testing necessary in "driving under the influence" cases:

               1.      What public entity bears the costs of the chemical testing?

              2.     Is $50 to be placed in the reimbursement account when the defendant is
convicted even though no fine is imposed or collected?

                3.     Upon conviction, is each defendant to be assessed $50 for the chemical testing
in addition to any base fine imposed?

                 4.     Is a county administering the special reimbursement account required to
account separately for each public entity: (1) the costs of the chemical testing, (2) whether $50 is
set aside for each public entity, and (3) whether an additional penalty authorized by the county board
of supervisors is collected from the defendant?

                5.     If a base fine and an additional penalty authorized by the county board of
supervisors are paid to the county probation department as a condition of probation, is the county
required to transfer $50 and deposit the additional penalty into the special reimbursement account?

                                         CONCLUSIONS

                 1.    With respect to the costs of chemical testing necessary in "driving under the
influence" cases, the costs of the chemical testing are to be paid from the funds deposited in the
special reimbursement account. If the account becomes exhausted, the public entity ordering the
particular tests must bear the costs of such tests.



                                                  1.                                          91-902

               2.     The $50 is to be placed in the special reimbursement account when the
defendant is convicted even though no fine is imposed or collected.

                3.      Upon conviction, each defendant is not to be assessed $50 for the chemical
testing in addition to any base fine imposed.

              4.       A county administering the special reimbursement account is required to
account separately for each public entity only when an additional penalty authorized by the county
board of supervisors is collected.

               5. If a base fine and additional penalty authorized by a county board of supervisors
are paid to a county probation department as a condition of probation, the county is required to
transfer $50 and deposit the additional penalty into the special reimbursement account.

                                           ANALYSIS

               Penal Code section 1463.141 provides:

              "(a) Notwithstanding the provisions of Section 1463, of the moneys
       deposited with the county treasurer pursuant to Section 1463, fifty dollars ($50) for
       each conviction of a violation of Section 23103, 23104, 23152, or 23153 of the
       Vehicle Code shall be deposited in a special account which shall be used exclusively
       to pay for the cost of performing for the county, or a city or special district within
       the county, analysis of blood, breath or urine for alcohol content or for the presence
       of drugs, or for services related to that testing. The sum shall not exceed the
       reasonable cost of providing the services for which the sum is intended.

               "On November 1 of each year, the treasurer of each county shall determine
       those moneys in the special account which were not expended during the preceding
       fiscal year, and shall transfer those moneys into the general fund of the county. The
       county may retain an amount of that money equal to its administrative cost incurred
       pursuant to this section, and shall distribute the remainder pursuant to Section 1463.

              "(b) The Board of Supervisors of Contra Costa County may by resolution,
       authorize the imposition of a fifty dollar ($50) assessment by the court upon each
       defendant convicted of a violation of Section 23152 or 23153 of the Vehicle Code
       for deposit in the account from which the fifty dollar ($50) distribution specified in
       subdivision (a) is deducted.

               "(c) The board of supervisors of a county other than Contra Costa County
       may, by resolution, authorize an additional penalty upon each defendant convicted
       of a violation of Section 23152 or 23153 of the Vehicle Code, of an amount equal to
       the cost of testing for alcohol content, less the fifty dollars ($50) deposited as
       provided in subdivision (a). The additional penalty authorized by this subdivision
       shall be imposed only in those instances where the defendant has the ability to pay,
       but in no case shall the defendant be ordered to pay a penalty in excess of fifty
       dollars ($50). The penalty authorized shall be deposited directly with the county, or
       city or special district within the county, which performed the test. . . .


   1
    All section references are to the Penal Code unless otherwise indicated.

                                                 2.                                             91-902

                ". . . . . . . .

              "(d) The Department of Justice shall promulgate rules and regulations to
        implement the provisions of this section."

The "moneys deposited with the county treasurer pursuant to Section 1463" (§ 1463.14, subd. (a))
are the fines collected for all criminal offenses, including the amounts of bail forfeited or deposited
as cash bail subject to forfeiture. Section 1463 provides for the distribution of the fines and
forfeitures by formula as between the state, the counties, and the cities. The "Section 23103, 23104,
23152, or 23153 of the Vehicle Code" violations are respectively for reckless driving, reckless
driving and causing bodily injury, driving under the influence of alcohol or a drug, and driving under
the influence of alcohol or a drug and causing bodily injury. The Department of Justice has
implemented section 1463.14 by regulation (Cal. Code Regs., tit. 11, §§ 997-998), including the
following provision:

                "Any forensic alcohol laboratory licensed under Title 17 of the California
        Code of Regulations which has performed for the county, or a city within the county,
        analysis of blood, breath or urine for alcohol content or for the presence of controlled
        substances, or for services related to such testing, shall submit its bill to the county
        auditor in conformity with the normal rules and/or regulations established by that
        auditor, or by any other administrative body within that county. Such bills or
        charges shall be submitted no more frequently than once a month." (Cal. Code
        Regs., tit. 11, § 997, subd. (d)).

                This request for our opinion requires us to analyze section 1463.14 regarding the
costs of the chemical testing necessary for "driving under the influence" (DUI) cases.

                1.         The Public Entity Bearing The Costs of Testing

                The first question presented concerns which public entity is to bear the costs of
chemical testing for DUI offenses. We conclude that so long as the reimbursement account is
solvent, no particular public entity is to bear such costs. The special fund is to do so on a first-come,
first-served basis.

                 We believe this conclusion flows from both the purpose for and the language of
subdivision (a) of section 1463.14. Section 1463.14 was enacted in 1978 (Stats. 1978, ch. 790) to
provide reimbursement for the costs of these chemical tests at a time when state funding for the
testing program was being eliminated. We have examined the legislative history of section 1463.14
and find that it was intended to provide a pool of money for the reimbursement of costs rather than
to designate or prescribe a public entity's liability for such costs.

                That this is so is evident from an examination of the language of section 1463.14.
Subdivision (a) of the statute provides only that from a larger pool of funds, all criminal fines and
penalties (§ 1463), $50 for each DUI conviction is to be transferred to a special, smaller fund to pay
for the chemical testing program. Nothing in the language of subdivision (a) purports to attribute
any particular $50 to a particular test or public entity which may have ordered the test. In fact, such
would defeat the purpose of the legislation. This is so because not all persons suspected of a DUI
offense will be convicted or even prosecuted. Accordingly, to carry out the Legislature's intent, the
pool must be a fungible source of non-earmarked funds available to reimburse testing costs
irrespective of the agency which has ordered a specific test. Otherwise, many tests will go
unreimbursed.


                                                   3.                                              91-902

                It follows, therefore, that so long as funds are available in the special reimbursement
account, no particular public entity is required to bear the costs of the DUI chemical tests. However,
the special account may at times be inadequate in providing the required reimbursements. In such
situation, we believe that the public agency ordering the chemical tests will be liable for their costs.2
We do so based upon the analysis of sections 29601 and 29602 of the Government Code found in
our opinion, 69 Ops.Cal.Atty.Gen. 36 (1986). In that opinion we concluded that as to expenses in
a criminal case not ordered by either the district attorney or the sheriff (see Gov. Code, § 29601),
and for which no other compensation is prescribed by law (see Gov. Code, § 29602), such expenses
are county charges only during the actual pendency of a "criminal proceeding." We further
concluded that a criminal proceeding is pending only after "the complaint charging the offense is
filed with the court or magistrate or when the grand jury receives evidence for the purpose of
proving a crime on which an indictment may be based" and "until it terminates." (Id. at pp. 43-44.)


                Likewise, we believe that as to chemical testing in DUI cases, the public agency
ordering the tests would be liable for those costs if the special account becomes exhausted. At such
time there would be no "compensation . . . prescribed by law" (Gov. Code, § 29602) and no criminal
proceeding yet commenced. Hence, the county would not be liable when the tests are ordered by
a city or special district. (See Irwin v. County of Yuba (1898) 119 Cal. 686, 690; L.A. Whse. Co. v.
Los Angeles (1934) 139 Cal.App. 368, 371; compare 53 Ops.Cal.Atty.Gen. 113 (1970) and 2
Ops.Cal.Atty.Gen. 69 (1943).)

               In answer to the first question, therefore, we conclude that with respect to the costs
of chemical testing necessary in DUI cases, the special reimbursement fund bears such costs, and
if it becomes exhausted, the public entity ordering the tests is responsible for the costs.

                2.      Where No Fine Is Imposed or Collected

               We are next asked whether $50 is to be deposited in the special reimbursement
account when a defendant is convicted but no fine is imposed or collected. We conclude that the
answer is "yes."

                The pertinent language of section 1463.14, subdivision (a) is:

               "Notwithstanding the provisions of Section 1463, of the moneys deposited
        with the county treasurer pursuant of Section 1463, fifty dollars ($50) for each
        conviction of a violation of Section 23103, 23104, 23152, or 23153 of the Vehicle
        Code shall be deposited in a special account . . . ."

                It is to be recalled that section 1463 provides for the deposit with the county treasurer
of the penalties, fines, and forfeitures resulting from all criminal offenses. Accordingly, the funds
collected pursuant to section 1463 constitute a general pool of deposits, not merely fines collected

   2
    This conclusion will require a determination as to the accounting period to determine solvency
of the special fund. Whether this is done on a monthly, quarterly, or other basis would appear to fall
within the discretion of the county, unless until the Department of Justice issues an implementing
regulation.

        Also, as to arrests for DUI offenses by state highway patrol officers, we believe that arrests
made within a city are to be attributed to that city and those made in unincorporated territory are to
be attributed to the county. (See § 1463, subs. (c) and (e).)

                                                   4.                                            91-902

for DUI offenses. Subdivision (a) of section 1463.14 authorizes a transfer from the general pool of
funds (§ 1463) of $50 "for each conviction" of a DUI offense. Thus it is the fact of a conviction that
triggers the $50 deposit, not the fact that a fine has been imposed or collected.

                This conclusion is reinforced by contrasting section 1463.14 with section 1463.16
relating to the special account for county alcohol programs. Subdivisions (a) and (b) of the latter
statute state:

                "(a) Notwithstanding section 1203.1 or 1463, fifty dollars ($50) of each
        fine for each conviction of a violation of Section 23103, 23104, 23152, or 23153 of
        the Vehicle Code shall be deposited with the county treasurer in a special account .
        ...

                "(b) In a county of the 1st, 2nd, 3rd, or 15th class, notwithstanding Section
        1463, of the moneys deposited with the county treasurer pursuant to Section 1463,
        fifty dollars ($50) for each conviction of a violation of section 23103, 23104, 23152,
        or 23153 of the Vehicle Code shall be deposited in a special account . . . ."

Accordingly, when the Legislature has intended the $50 to be deposited (1) based upon the
collection of a fine or (2) based upon the fact of conviction, it has made such a distinction and has
so provided.

             In answer to the second question, we conclude that $50 is to be placed in the special
reimbursement account when the defendant is convicted even though no fine is imposed or collected.

                3.      An Additional $50 Assessment

                 We are also asked whether each defendant convicted of a DUI offense is to be
assessed an additional $50 pursuant to subdivision (a) of section 1463.14 over and above any base
fine imposed by the court. As defined in section 1463, a "base fine" is the component of the "[t]otal
fine or forfeiture" collected upon a conviction or forfeiture of bail and "upon which the state penalty
and additional county penalty is calculated." (§ 1463, subd. (l).)

               There is nothing in subdivision (a) of section 1463.14 which imposes an assessment
upon a defendant. As discussed above, subdivision (a) of section 1463.14 provides for a transfer
of $50 for each DUI conviction from the pool of funds established pursuant to section 1463.

               Accordingly, a defendant convicted of a DUI offense is not to be assessed an
additional $50 for chemical testing pursuant to subdivision (a) of section 1463.14 over and above
any base fine imposed upon conviction.

                4.      Separate Accounts For Each Public Entity

                The fourth question posed is whether section 1463.14 contemplates that a separate
account will be set up for each county, city, and special district specifying (1) the costs of the
chemical tests, (2) whether $50 is set aside for the public entity pursuant to subdivision (a) of section
1463.14, and (3) whether an additional penalty is collected from the defendant under section
1463.14, subdivision (c).

                As already discussed, we view section 1463.14 as creating a pool of fungible and
non-earmarked funds from which to pay for chemical testing. Hence, we do not believe that a
particular $50 transferred into the reimbursement fund under subdivision (a) of the statute is to be

                                                   5.                                            91-902

attributed to a particular defendant or chemical test. However, if the county board of supervisors
has exercised it option pursuant to subdivision (c) to assess an additional penalty, a different
conclusion is reached. Such additional penalty "shall be deposited directly with the county, or city
or special district within the county, which performed the test . . . ." (§ 1463.14, subd. (c).) In that
case, some form of tracking will be necessary with respect to the particular chemical tests and
individual defendants. We view the mechanics of such tracking to be essentially an administrative
matter, dependent upon the number of public entities, the number of laboratories used, and the costs
of the testing.

                Additionally, we note the second paragraph of subdivision (a) of section 1463.14:
"[T]hose moneys in the special account which were not expended during the preceding year" shall
be transferred "into the general fund of the county." After deducting an administrative cost, the
county is to "distribute the remainder pursuant to Section 1463." Again, some form of accounting
will be required on the part of the courts and the county to permit such a distribution pursuant to the
terms of section 1463.

                In answer to the fourth question, we conclude that a county administering the special
reimbursement account is required to account separately for each public entity only when an
additional penalty is collected as authorized by the county board of supervisors under subdivision
(c) of section 1463.14.

               5.      Disposition Of Funds When Probation Granted

                The final question presents the situation where a defendant convicted of a DUI
offense pays to the county probation department as a condition of probation the base fine and an
additional penalty authorized by the county board of supervisors. Must the county transfer $50 and
deposit the additional penalty into the special reimbursement account or may it deposit such amounts
in the county's general fund?

               The statute requiring analysis is section 1203.1. It provides in part:

               "Notwithstanding any other provisions of law to the contrary, except as
       provided in Sections 13967 and 13967.5 of the Government Code and Sections
       1202.4, 1203.04, 1463.16, paragraph (1) of subdivision (a) of Section 1463.18, and
       Section 1464, all fines collected by a county probation officer in any of the courts of
       this state, as a condition of the granting of probation or as a part of the terms of
       probation, shall be paid into the county treasury and placed in the general fund for
       the use and benefit of the county."

Here, the base fine is paid by the defendant for the DUI offense and "collected by a county probation
officer . . . as a condition of the granting of probation." Section 1203.1 directs that it be "paid into
the county treasury and placed in the general fund."

                The base fine in question thus will not be deposited into the county treasury pursuant
section 1463, but rather pursuant to section 1203.1. The $50 transfer under subdivision (a) of
section 1463.14 for the special reimbursement fund is only made from "moneys deposited with the
county treasurer pursuant to section 1463." While the base fine paid in the present circumstances
is placed in the county's general fund "[n]othwithstanding any other provisions of law" (§ 12031),
a $50 transfer must still occur from the section 1463 pool of funds pursuant to subdivision (a) of
section 1463.14, since the latter transfer is based upon the defendant's "conviction" rather than
whether any fine is paid.


                                                  6.                                             91-902

                With respect to the additional penalty authorized by the county board of supervisors
(§ 1463.14, subd. (c)), we do not believe that it constitutes a "fine" subject to the directive of section
1203.1. In 62 Ops.Cal.Atty.Gen. 249 (1974), we concluded that section 1203.1 requires only the
deposit of the actual fines and that where there are additional penalties assessed, the penalties are
to be deposited in the specific funds provided by law for such penalties. We reaffirm our prior
opinion and apply it here.

               Accordingly, the penalty assessed against a defendant pursuant to subdivision (c) of
section 1463.14 as authorized by a county board of supervisors would not be subject to deposit in
the county's general fund under the terms of section 1203.1.

                We conclude in answer to the fifth question that section 1203.1 does not preclude the
transfer of $50 to the special reimbursement account from the section 1463 pool of funds or the
deposit of the additional penalty assessed pursuant to section 1463.14, subdivision (c).

                                                *****




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