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 (More) AB 2020 (Pan) Page 2 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 (More) AB 2020 (Pan) Page 3 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 § (More) AB 2020 (Pan) Page 4 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 (More) AB 2020 (Pan) Page 5 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 (More) AB 2020 (Pan) Page 6 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 (More) AB 2020 (Pan) Page 7 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 (More) AB 2020 (Pan) Page 8 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 (More) AB 2020 (Pan) Page 9 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 (More) AB 2020 (Pan) Page 10 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 (More) AB 2020 (Pan) Page 11 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 (More) AB 2020 (Pan) Page 12 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. (More) 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 (More) AB 2020 (Pan) Page 14 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 AB 2020 (Pan) Page 15 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. ***************