BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

                                                                     2
                                                                     0
                                                                     2
          AB 2020 (Pan)                                              0
          As Amended April 19, 2012
          Hearing date:  June 19, 2012
          Vehicle Code
          MK:mc

                        VEHICLES: DRIVING UNDER THE INFLUENCE:

                                   CHEMICAL TESTS  


                                       HISTORY

          Source:  California District Attorneys Association

          Prior Legislation: SB 1890 (Hurt) - Chapter 740, Stats. 1998

          Support: California Peace Officers' Association; Sacramento 
                   County Sheriff's Department; Sacramento County District 
                   Attorney; California State Sheriffs' Association; Los 
                   Angeles County District Attorney; Mothers Against Drunk 
                   Driving; Crime Victims United of California

          Opposition:California Public Defenders Association; California 
                   Attorneys for Criminal Justice

          Assembly Floor Vote:  Ayes 68- Noes 0



                                         KEY ISSUE
           
          SHOULD THE OPTION OF PROVIDING URINE SAMPLES BE REMOVED AND BLOOD 




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          TESTS BE MANDATED FOR DETERMINING THE LEVEL OF DRUG INTOXICATION 
          WHEN A PERSON IS ACCUSED OF DRIVING UNDER THE INFLUENCE OF DRUGS?





                                       PURPOSE

          The purpose of this bill is to remove the option of providing 
          urine samples, and mandate blood tests, for determining the 
          level of drug intoxication when a person is accused of driving 
          under the influence of drugs.

           Existing law  provides that "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 vehicle under like 
          conditions.  (California Vehicle Code § 312.)

           Existing law  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.  (California Vehicle Code § 23612(a)(1)(A).) 

           Existing law  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 




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          influence.  (California Vehicle Code § 23612(a)(1)(B).) 

           Existing law  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.  (California Vehicle Code § 23612(a)(1)(C).)

           Existing law  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 of specified driving under the 
          influence provisions.  (California Vehicle Code § 
          23612(a)(1)(D).)  

           Existing law  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.  (California 
          Vehicle Code § 23612(a)(2)(A).)

           Existing law  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 has that choice.  (California Vehicle Code § 




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          23612(a)(2)(B).)

           Existing law  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.  (California Vehicle Code § 
          23612(a)(2)(C).) 

           Existing law  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.  
          (California Vehicle Code § 23612(a)(3).) 

           Existing law  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 




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          may be used against him or her in a court of law.  (California 
          Vehicle Code § 23612(a)(4).) 

           Existing law  specifies that a person who is unconscious or 
          otherwise in a condition rendering him or her incapable of 
          refusal is deemed 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.  (California Vehicle Code § 23612(a)(5).)

           Existing law  states that a person who is afflicted with 
          hemophilia is exempt from the blood test required by this 
          section.  (California Vehicle Code § 23612(b).)  
           
          Existing law  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.  (California Vehicle Code § 
          23612(c).)

           Existing law  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.  
          (California Vehicle Code § 23612(d)(1).)  

           Existing law  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 then shall be deemed to have given his 
          or her consent to chemical testing of his or her urine and shall 




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          submit to a urine test.  (California Vehicle Code § 
          23612(d)(2).)  

           Existing law  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.  (California 
          Vehicle Code § 23612(e).)  

           Existing law  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.  
          (California Vehicle Code § 23612(f).)

           Existing law  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.  (California Vehicle Code § 
          23612(g)(1).)  

           Existing law  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 




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          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.  (California Vehicle Code § 
          23612(g)(2)(A).)  

           This bill  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.  

           This bill  requires that if a blood test is unavailable, then the 
          person is deemed to have given his or her consent to a urine 
          test. 

           This bill  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.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                      ("ROCA")
          
          In response to the unresolved prison capacity crisis, since 
          early 2007 it has been the policy of the chair of the Senate 




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          Committee on Public Safety and the Senate President pro Tem to 
          hold legislative proposals which could further aggravate prison 
          overcrowding through new or expanded felony prosecutions.  Under 
          the resulting policy known as "ROCA" (which stands for 
          "Receivership/Overcrowding Crisis Aggravation"), the Committee 
          has held measures which create a new felony, expand the scope or 
          penalty of an existing felony, or otherwise increase the 
          application of a felony in a manner which could exacerbate the 
          prison overcrowding crisis by expanding the availability or 
          length of prison terms (such as extending the statute of 
          limitations for felonies or constricting statutory parole 
          standards).  In addition, proposed expansions to the 
          classification of felonies enacted last year by AB 109 (the 2011 
          Public Safety Realignment) which may be punishable in jail and 
          not prison (Penal Code section 1170(h)) would be subject to ROCA 
          because an offender's criminal record could make the offender 
          ineligible for jail and therefore subject to state prison.  
          Under these principles, ROCA has been applied as a 
          content-neutral, provisional measure necessary to ensure that 
          the Legislature does not erode progress towards reducing prison 
          overcrowding by passing legislation which could increase the 
          prison population.  ROCA will continue until prison overcrowding 
          is resolved.

          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 
          plaintiffs in two federal lawsuits against CDCR sought a 
          court-ordered limit on the prison population pursuant to the 
          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 




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          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  Design capacity is the number of inmates a 
          prison can house based on one inmate per cell, single-level 
          bunks in dormitories, and no beds in places not designed for 
          housing.  Current design capacity in CDCR's 33 institutions is 
          79,650.

          On January 6, 2012, CDCR announced that California had cut 
          prison overcrowding by more than 11,000 inmates over the last 
          six months, a reduction largely accomplished by the passage of 
          Assembly Bill 109.  Under the prisoner-reduction order, the 
          inmate population in California's 33 prisons must be no more 
          than the following:

                 167 percent of design capacity by December 27, 2011 
               (133,016 inmates);
                 155 percent by June 27, 2012;
                 147 percent by December 27, 2012; and
                 137.5 percent by June 27, 2013.
               
          This bill does not aggravate the prison overcrowding crisis 
          described above under ROCA.

                                      COMMENTS

          1.    Need for This Bill  

          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 




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               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.  Elimination of Urine Test for Suspected Driving Under the 
          Influence of Drugs  

          Under existing law, a person is deemed to have given his or her 
          consent to chemical testing of his or her blood or breath if 
          suspected of driving under the influence of alcohol and his or 
          her consent to chemical testing of his or her blood, breath, or 
          urine if suspected of driving under the influence of drugs.  
          This bill will eliminate the option for a urine test unless a 
          blood test is unavailable or the person is a hemophiliac or 
          using an anticoagulant under the direction of a physician.

          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 




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          giving blood causes a greater risk (such as heart disease or 
          hemophilia).  Prosecutors can use 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.   
           

          3.     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 




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               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.  





































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               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 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. 

          4.    Opposition

           In opposition the California Public Defenders Association 
          states:

               First, this is unnecessary because both scientific 
               literature and several published court decisions have 
               repeatedly and uniformly held that properly conducted 
               and timely urine tests can produce forensically 
               reliable measurements of virtually all drugs in a test 
               subjects 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 involved and the insult to physical 
               dignity.  Since urine testing is sufficient to the task 
               it is difficult to imagine when the need for a blood 
               test would outweigh the 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 




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               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 test for 
               alcohol-based DUI was eliminated, but that still left 
               an alternative to "invasion by needle," namely the 
               breath test. 

               Moreover, the perceived problems with urine tests for 
               alcohol do not apply to drug tests.  In particular, a 
               urine test for alcohol requires a voiding of the 
               bladder and a wait for at least 20 minutes before a 
               testable sample is collected.  This is due to the 
               relatively short "half life" of alcohol in the blood 
               and the comparatively long time that alcohol can 
               accumulate in the bladder.  Thus, the "stale" urine 
               must be voided, and a "fresh" sample collected 
               reflecting only the alcohol most recently in the 
               subject's blood.  This concern does not apply to drug 
               testing because drugs normally have a much longer "half 
               life" and a preliminary voiding is not required. 

               Also, when testing urine for alcohol forensic experts 
               had to deal with the relatively wide range of the 
               partition ratio between blood alcohol and urine alcohol 
               in trying to calculate whether a prohibited level of 











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               alcohol in the blood is represented by the 
               concentration in the urine.  The average ratio was 
               commonly represented as 1.3 to 1, but it was also 
               commonly accepted that the ratio could range down to .9 
               to 1 and up to 1.6 to 1 (and some scientific literature 
               articulated an even wider range). When trying to 
               establish a blood alcohol level as precise as .08% the 
               breadth of this range was a significant hurdle, often 
               requiring a measured level of .10 to .12% to be sure 
               the corresponding level in the blood was at least.08%. 

               The same difficulty is not presented in urine testing 
               for drugs.  First, the known partition ratio for most 
               drugs between blood concentration and urine 
               concentration is not nearly as wide as it is for 
               alcohol.  Secondly, drug intoxication is not pegged to 
               a specific numerical level, like it is for alcohol, so 
               partition ratio variability is less consequential.  
               Drugs affect different people differently and since 
               specific levels in the blood (in the minor to moderate 
               range) don't necessarily reflect influence it is 
               critical to evaluate driving behavior and physical 
               symptoms together with the measured level of drugs in 
               establishing prohibited drug influence during driving. 


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