BILL ANALYSIS Ó AB 2020 Page 1 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).] AB 2020 Page 2 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 AB 2020 Page 3 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 AB 2020 Page 4 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).] AB 2020 Page 5 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 AB 2020 Page 6 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 AB 2020 Page 7 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 AB 2020 Page 8 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 AB 2020 Page 9 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