BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2020
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          Date of Hearing:   April 10, 2012
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  AB 2020 (Pan) - As Introduced:  February 23, 2012
           

          SUMMARY  :  Removes the option of providing urine samples, and 
          mandates blood tests, for determining the level of drug 
          intoxication when a person is accused of driving under the 
          influence of drugs.  Specifically,  this bill  :  

          1)Deletes the option for persons alleged to be driving under the 
            influence of drugs to choose a chemical test of his or her 
            urine for the purpose of determining the drug content of his 
            or her blood.  The bill would require blood tests where 
            available.  

          2)Requires that if a blood test is unavailable, then the person 
            is deemed to have given his or her consent to a urine test. 

          3)Requires that if the person is lawfully arrested for driving 
            under the influence of a drug or the combined influence of an 
            alcoholic beverage and any drug, the person only has the 
            choice of either a blood or breath test.  This bill would 
            delete the option of a urine test, except as required as an 
            additional test.

           EXISTING LAW  

          1)States that a person who drives a motor vehicle is deemed to 
            have given his or her consent to chemical testing of his or 
            her blood or breath for the purpose of determining the 
            alcoholic content of his or her blood, if lawfully arrested 
            for an offense allegedly committed in violation of driving 
            under the influence. If a blood or breath test, or both, are 
            unavailable, then the person shall submit to the remaining 
            test in order to determine the presence, by weight, of alcohol 
            in the person's blood or if both are unavailable the person 
            shall submit a urine test.  ÝCalifornia Vehicle Code Section 
            23612(a)(1)(A).]  









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          2)States that a person who drives a motor vehicle is deemed to 
            have given his or her consent to chemical testing of his or 
            her blood or urine for the purpose of determining the drug 
            content of his or her blood, if lawfully arrested for an 
            offense allegedly committed in violation of driving under the 
            influence.  ÝCalifornia Vehicle Code Section 23612(a)(1)(B).]  


          3)Specifies that the testing shall be incidental to a lawful 
            arrest and administered at the direction of a peace officer 
            having reasonable cause to believe the person was driving a 
            motor vehicle in violation of driving under the influence.   
            ÝCalifornia Vehicle Code Section 23612(a)(1)(C).]  

          4)Requires that the person shall be told that his or her failure 
            to submit to, or the failure to complete, the required 
            chemical testing will result in a fine, mandatory imprisonment 
            if the person is convicted of a violation of driving under the 
            influence, and the suspension of the person's privilege to 
            operate a motor vehicle for a period of one year, the 
            revocation of the person's privilege to operate a motor 
            vehicle for a period of two years if the refusal occurs within 
            10 years of a separate violation specified driving under the 
            influence provisions.  ÝCalifornia Vehicle Code Section 
            23612(a)(1)(D).]  

          5)States that if the person is lawfully arrested for driving 
            under the influence of an alcoholic beverage, the person has 
            the choice of whether the test shall be of his or her blood or 
            breath and the officer shall advise the person that he or she 
            has that choice. If the person arrested either is incapable, 
            or states that he or she is incapable, of completing the 
            chosen test, the person shall submit to the remaining test. If 
            a blood or breath test, or both, are unavailable, then the 
            person shall submit to the remaining test in order to 
            determine the presence, by weight, of alcohol in the person's 
            blood or if both are unavailable the person shall submit a 
            urine test.  ÝCalifornia Vehicle Code Section 23612(a)(2)(A).] 
             

          6)Provides if the person is lawfully arrested for driving under 
            the influence of any drug or the combined influence of an 
            alcoholic beverage and any drug, the person has the choice of 
            whether the test shall be of his or her blood, breath, or 
            urine, and the officer shall advise the person that he or she 








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            has that choice.  ÝCalifornia Vehicle Code Section 
            23612(a)(2)(B).]

          7)States that a person who chooses to submit to a breath test 
            may also be requested to submit to a blood or urine test if 
            the officer has reasonable cause to believe that the person 
            was driving under the influence of a drug or the combined 
            influence of an alcoholic beverage and a drug and if the 
            officer has a clear indication that a blood or urine test will 
            reveal evidence of the person being under the influence. The 
            officer shall state in his or her report the facts upon which 
            that belief and that clear indication are based. The person 
            has the choice of submitting to and completing a blood or 
            urine test, and the officer shall advise the person that he or 
            she is required to submit to an additional test and that he or 
            she may choose a test of either blood or urine. If the person 
            arrested either is incapable, or states that he or she is 
            incapable, of completing either chosen test, the person shall 
            submit to and complete the other remaining test.  ÝCalifornia 
            Vehicle Code Section 23612(a)(2)(C).]  

          8)States that if the person is lawfully arrested for an offense 
            allegedly committed in violation of driving under the 
            influence, and, because of the need for medical treatment, the 
            person is first transported to a medical facility where it is 
            not feasible to administer a particular test of, or to obtain 
            a particular sample of, the person's blood, breath, or urine, 
            the person has the choice of those tests that are available at 
            the facility to which that person has been transported. In 
            that case, the officer shall advise the person of those tests 
            that are available at the medical facility and that the 
            person's choice is limited to those tests that are available.  
            ÝCalifornia Vehicle Code Section 23612(a)(3).]  

          9)States that the officer shall also advise the person that he 
            or she does not have the right to have an attorney present 
            before stating whether he or she will submit to a test or 
            tests, before deciding which test or tests to take, or during 
            administration of the test or tests chosen, and that, in the 
            event of refusal to submit to a test or tests, the refusal may 
            be used against him or her in a court of law.  ÝCalifornia 
            Vehicle Code Section 23612(a)(4).]  

          10)Specifies that a person who is unconscious or otherwise in a 
            condition rendering him or her incapable of refusal is deemed 








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            not to have withdrawn his or her consent and a test or tests 
            may be administered whether or not the person is told that his 
            or her failure to submit to, or the noncompletion of, the test 
            or tests will result in the suspension or revocation of his or 
            her privilege to operate a motor vehicle. A person who is dead 
            is deemed not to have withdrawn his or her consent and a test 
            or tests may be administered at the direction of a peace 
            officer.  ÝCalifornia Vehicle Code Section 23612(a)(5).]  

          11)States that a person who is afflicted with hemophilia is 
            exempt from the blood test required by this section.  
            ÝCalifornia Vehicle Code Section 23612(b).]  

          12)Provides that a person who is afflicted with a heart 
            condition and is using an anticoagulant under the direction of 
            a licensed physician and surgeon is exempt from the blood test 
            required by this section.  ÝCalifornia Vehicle Code Section 
            23612(c).]  

          13)States that a person lawfully arrested for an offense 
            allegedly committed while the person was driving a motor 
            vehicle in violation of driving under the influence may 
            request the arresting officer to have a chemical test made of 
            the arrested person's blood or breath for the purpose of 
            determining the alcoholic content of that person's blood, and, 
            if so requested, the arresting officer shall have the test 
            performed.  ÝCalifornia Vehicle Code Section 23612(d)(1).]  

          14)States that if a blood or breath test is not available the 
            person shall submit to the remaining test in order to 
            determine the percent, by weight, of alcohol in the person's 
            blood. If both the blood and breath tests are unavailable, the 
            person shall be deemed to have given his or her consent to 
            chemical testing of his or her urine and shall submit to a 
            urine test.  ÝCalifornia Vehicle Code Section 23612(d)(2).]  

          15)Provides that if the person, who has been arrested for a 
            violation of driving under the influence refuses or fails to 
            complete a chemical test or tests, or requests that a blood or 
            urine test be taken, the peace officer, acting on behalf of 
            the department, shall serve the notice of the order of 
            suspension or revocation of the person's privilege to operate 
            a motor vehicle personally on the arrested person. The notice 
            shall be on a form provided by the department.  ÝCalifornia 
            Vehicle Code Section 23612(e).]  








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          16)States that if the peace officer serves the notice of the 
            order of suspension or revocation of the person's privilege to 
            operate a motor vehicle, the peace officer shall take 
            possession of all driver's licenses issued by this state that 
            are held by the person. The temporary driver's license shall 
            be an endorsement on the notice of the order of suspension and 
            shall be valid for 30 days from the date of arrest.  
            ÝCalifornia Vehicle Code Section 23612(f).] 

          17)Provides that the peace officer shall immediately forward a 
            copy of the completed notice of suspension or revocation form 
            and any driver's license taken into possession, with the 
            report required to the department. If the person submitted to 
            a blood or urine test, the peace officer shall forward the 
            results immediately to the appropriate forensic laboratory. 
            The forensic laboratory shall forward the results of the 
            chemical tests to the department within 15 calendar days of 
            the date of the arrest.  ÝCalifornia Vehicle Code Section 
            23612(g)(1).]  

          18)States that notwithstanding any other provision of law, a 
            document containing data prepared and maintained in the 
            governmental forensic laboratory computerized database system 
            that is electronically transmitted or retrieved through public 
            or private computer networks to or by the department is the 
            best available evidence of the chemical test results in all 
            administrative proceedings conducted by the department. In 
            addition, any other official record that is maintained in the 
            governmental forensic laboratory, relates to a chemical test 
            analysis prepared and maintained in the governmental forensic 
            laboratory computerized database system, and is electronically 
            transmitted and retrieved through a public or private computer 
            network to or by the department is admissible as evidence in 
            the department's administrative proceedings. In order to be 
            admissible as evidence in administrative proceedings, a 
            document described in this subparagraph shall bear a 
            certification by the employee of the department who retrieved 
            the document certifying that the information was received or 
            retrieved directly from the computerized database system of a 
            governmental forensic laboratory and that the document 
            accurately reflects the data received or retrieved.  
            ÝCalifornia Vehicle Code Section 23612(g)(2)(A).]  

           FISCAL EFFECT  :   Unknown








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           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Under current 
            law, DUI offenders suspected of being under the influence of 
            drugs or the combination of drugs and alcohol can opt for a 
            blood or urine test. While the urine test used to be an option 
            for those suspected of driving under the influence of only 
            alcohol, the test was removed as an option in 1998 because of 
            its unreliability. However, the test is still an option for 
            those driving under the influence of drugs or the combination 
            of drugs and alcohol. This minor loophole results in more DUI 
            court cases being dismissed because of unreliable urine tests, 
            and puts the safety of the public at risk. Tighter DUI laws 
            mean safer citizens and safer communities. AB 2020 is a 
            necessary piece of legislation to ensure that DUI drug and 
            combination drug and alcohol offenders can be accurately 
            prosecuted."

           2)Definition of Drugs for Purposes of DUI  :  "Drug" means any 
            substance or combination of substances, other than alcohol, 
            that could so affect the nervous system, brain, or muscles of 
            a person as to impair, to an appreciable degree, his or her 
            ability to drive a vehicle in the manner that an ordinarily 
            prudent and cautious person, in full possession of his or her 
            faculties, using reasonable care, would drive a similar under 
            like conditions.  (California Vehicle Code Section 312.)  

           3)Invasiveness of Blood Tests  :  When determining the 
            appropriateness of chemical tests for persons suspected of 
            criminal activity it is the duty of policy makers to balance 
            the invasiveness of the procedures with the level of 
            information which can be obtained.  In this case the balance 
            is between the additional information which can be garnered 
            from a blood test (in lieu of a urine test) versus the 
            invasiveness of a needle drawing blood from an accused 
            individual (in lieu of providing a urine sample).  According 
            to the opponents:  blood, breath, and urine tests are all 
            searches under the 4th Amendment.  They argue that invasive 
            searches of the interior of the body require special 
            justification and a balancing of the need against the medical 
            risk involved and the insult to physical dignity.  Special 
            consideration should be given to persons suffering from 
            medical conditions in which giving blood causes a greater risk 
            (such as heart disease or hemophilia).  Prosecutors can use 








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            evidence of drugs in the system with other evidence gained at 
            the scene, such as field sobriety tests or poor driving by the 
            defendant.  The exact level of intoxication is not the only 
            evidence in a DUI case.  Proponents have cited studies which 
            state that blood tests are much more specific in determining 
            the level of drugs than urine tests, due to the way drugs are 
            metabolized in the human body.    
                
            4)Argument in Support  :  According to the  California District 
            Attorneys Association  , "Since 1992, California drivers 
            arrested for DUI-drug have been deemed to have given consent 
            to having their blood or urine tested to determine their level 
            of impairment.  However, urine tests are widely acknowledged 
            as an inaccurate and unreliable measure of drug levels in a 
            person's system.  According to the National Institute of Drug 
            Abuse, urine tests can prove that a driver has recently used a 
            drug, but cannot distinguish the level of the drug in the 
            driver's system.  Drug concentrations are absorbed into urine 
            and fatty tissues at varying rates depending on the person 
            consuming the drug.  These concentrations are also 'subject to 
            dilution, depending on the volume of liquid consumed, and 
            therefore cannot be reliably used to assess impairment.' 

          "According to the California Bureau of Forensic Services, 
            'Quantitation of the drug(s) found in urine samples is of no 
            value for drugs other than alcohol?Due to the variability of 
            absorption, distribution, metabolism, excretion and 
            elimination of drugs between individuals no correlation can be 
            made between the presence of a drug in the urine and levels of 
            drug in blood."  For example, levels or marijuana found in a 
            urine test could indicate that the driver is either a chronic 
            user or has recently used the drug, but do not indicate how 
            recently the drug was used, or if the driver was actually 
            under the influence at the time of arrest.  A blood test, on 
            the other hand, can indicate the level of intoxication 
            experienced by the driver at the time of arrest.  

          "Many DUI defense attorneys advise drivers to opt for a urine 
            test because it is the most unreliable indicator of 
            drug-related impairment, and thus makes it easier to challenge 
            in court.  As a result, more DUI cases go on trial when a 
            urine test is used to the ambiguity of the test results.  This 
            has the effect of crowding California's already congested 
            court system.  Urine tests also allow persons who illegally 
            drive while under the influence of drugs to go unpunished due 








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            to the lack of reliable evidence, when a blood test could have 
            confirmed intoxication.  One must also consider the benefit of 
            helping to ensure that innocent people are not convicted 
            because an unreliable test is allowed to remain in use.  
            Taxpayers would be better served by eliminating the urine test 
            option, thus cutting court costs by keeping minor DUI cases 
            out of the courtroom."  

           5)Argument in Opposition:   According to the  California Public 
            Defenders Association  , "When an individual is arrested for 
            driving under the influence of drugs and alcohol the implied 
            consent law requires him to submit to a blood or urine test 
            since a breath test will test for alcohol only.  AB 2020 would 
            delete the option of a urine test for drugs, thus denying the 
            arrestee any choice and subjecting him to a compulsory blood 
            draw. 

          "First, this is unnecessary because both scientific literature 
            and several published court decision have repeatedly and 
            uniformly held that properly conducted and timely urine tests 
            can produce forensically reliable measurement of virtually all 
            drugs in a test subject system.  Secondly, Fourth Amendment 
            jurisprudence has consistently held that blood, breath, or 
            urine tests are searches, and that invasive searches of the 
            interior of the body require special justification and a 
            balancing of need against the medical risk and invasiveness 
            involved in sticking a needle into someone's vein.  Previous 
            judicial approval of blood tests has almost always been based 
            on the legal availability of other tests which were rejected 
            by the arrestee or the temporary unavailability of those 
            alternatives through no fault of the police.  When warrantless 
            forcible blood draws are permitted the courts require not only 
            probable cause and physical custody of the subject but a 
            showing of exigency, non-brutal methods, and proper medical 
            safeguards.  Since we know that urine testing is available and 
            scientifically reliable it is hard to see how the required 
            'exigency' can be established.  

          "While some in law enforcement might prefer a blood draw because 
            they erroneously perceive it to be more accurate than urine - 
            as long as urine tests meet the threshold for scientific 
            reliability that preference alone should not outweigh the 
            arrestees' legitimate privacy interests in his physical safety 
            and integrity.  It is true that several years ago the urine 
            tests for alcohol-based DUI was eliminated, but that still 








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            left an alternative to 'invasion by needle,' namely the breath 
            test."  
           
           6)Related Legislation:   AB 2552 (Torres), would make it a crime 
            for a person who has any level of cannabinoids or synthetic 
            cannabinoid compound, as defined, in his or her blood or urine 
            to drive a vehicle.  AB 2552 is set for hearing in Assembly 
            Public Safety on April 24, 2012.  

           7)Prior Legislation  :  SB 1890 (Hurtt), Statutes of 1998, chapter 
            740, deleted the requirement that a person who is lawfully 
            arrested for driving a vehicle, or operating a water-related 
            vessel or device or aircraft while under the influence of an 
            alcoholic beverage be offered the choice to submit to a urine 
            test. The bill continued to require the urine test option to 
            be available in these instances under specified circumstances 
            or if the person is arrested for driving or operating a 
            vehicle, water-related vessel or device, or aircraft while 
            under the influence of a combination of drugs and alcohol or 
            drugs only.
           
          REGISTERED SUPPORT / OPPOSITION :   

           Support 
           
          California District Attorneys Association 
          Crime Victims United
          Mothers Against Drunk Driving (California)
          Sacramento County District Attorney, Jan Scully

           Opposition 
           
          California Public Defenders Association
           

          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916) 
          319-3744