BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2020| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 2020 Author: Pan (D) Amended: 4/19/12 in Assembly Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/19/12 AYES: Hancock, Anderson, Calderon, Harman, Liu, Price, Steinberg SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 68-0, 5/17/12 - See last page for vote SUBJECT : Vehicles: driving under the influence: chemical tests SOURCE : California District Attorneys Association DIGEST : This bill removes 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. ANALYSIS : Existing law provides that a person who is lawfully arrested for driving under the influence of a drug or the combined influence of an alcoholic beverage and drug has a choice of whether a chemical test to determine his/her drug or drug and alcohol level shall be a blood, breath, or urine test. If the person chooses to submit to a breath test, he/she may also be requested to submit to a CONTINUED AB 2020 Page 2 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. Existing law exempts a person who is afflicted with hemophilia, or a heart condition and is using anticoagulant, from the blood test. This bill deletes the option for persons alleged to be driving under the influence of drugs to choose a chemical test of his/her urine for the purpose of determining the drug content of his/her blood. This bill requires blood tests where available. This bill requires that if a blood test is unavailable, then the person is deemed to have given his/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 deletes the option of a urine test, except as required as an additional test. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes SUPPORT : (Verified 8/8/12) California District Attorneys Association (source) California Peace Officers' Association California State Sheriffs' Association Crime Victims United of California Los Angeles County District Attorney Mothers Against Drunk Driving Sacramento County District Attorney Sacramento County Sheriff's Department OPPOSITION : (Verified 8/8/12) California Public Defenders Association California Attorneys for Criminal Justice CONTINUED AB 2020 Page 3 ARGUMENTS IN SUPPORT : 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." 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 CONTINUED AB 2020 Page 4 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 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. ARGUMENTS 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 were rejected by the arrestee or the CONTINUED AB 2020 Page 5 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 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 CONTINUED AB 2020 Page 6 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. ASSEMBLY FLOOR : 68-0, 5/17/12 AYES: Achadjian, Alejo, Allen, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng, Feuer, Fong, Fuentes, Furutani, Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones, Knight, Logue, Ma, Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell, Nestande, Nielsen, Pan, V. Manuel Pérez, Portantino, Silva, Smyth, Solorio, Swanson, Torres, Valadao, Wagner, Williams, John A. Pérez NO VOTE RECORDED: Ammiano, Cedillo, Fletcher, Gorell, Lara, Bonnie Lowenthal, Norby, Olsen, Perea, Skinner, Wieckowski, Yamada RJG:k 8/8/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED AB 2020 Page 7 CONTINUED