BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 289 (Correa)
As Amended April 11, 2013
Hearing date: April 30, 2013
Vehicle Code
MK:mc
VEHICLES:
DRIVING UNDER THE INFLUENCE: DRUGS
HISTORY
Source: California Narcotics Officers' Association; California
Police Chiefs Association; California State Sheriffs'
Association; International Faith Based Coalition
Prior Legislation:SB 50 (Correa) - as amended in the Assembly,
failed Assembly
Public Safety, 2012
AB 2552 (Torres) - Chapter 753, Statutes of 2012
AB 1215 (Benoit) - failed Assembly Public Safety,
2008
AB 2673 (Bogh) - failed Assembly Public Safety,
2006
Support: Sheriff of Orange County; Crime Victims United of
California; Riverside Sheriffs' Association;
Association for Los Angeles Deputy Sheriffs; Los
Angeles Police Protective League; Crime Victims Action
Alliance; California Association of Highway Patrolmen;
California Peace Officers' Association
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Opposition:California DUI Lawyers Association; Drug Policy
Alliance; California NORML; The Greater Los Angeles
Collective Alliance; California Public Defenders
Association; Law Enforcement Against Prohibition
(concerns); California Attorneys for Criminal Justice;
Marijuana Policy Project; ACLU; numerous individuals
KEY ISSUE
SHOULD IT BE UNLAWFUL TO DRIVE WITH ANY DRUG IN YOUR SYSTEM?
PURPOSE
The purpose of this bill is to create a zero tolerance for drugs
while driving.
Existing law provides it is unlawful for any person who is under
the influence of any alcoholic beverage or drug, or under the
combined influence of any alcoholic beverage and drug, to drive
a vehicle. (Vehicle Code � 23152(a).)
Existing law provides that it is unlawful for any person, while
having 0.08 percent or more, by weight, of alcohol in his or her
blood to drive a vehicle. (Vehicle Code � 23152(b).)
Existing law provides that it is unlawful for any person who is
addicted to the use of any drug to drive a vehicle. (Vehicle
Code � 23152(c).)
Existing law provides that it is unlawful for a person who is
under the influence of any drug to drive a vehicle. (Vehicle
Code � 23152(e).)
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Existing law classifies controlled substances in five schedules
according to their danger and potential for abuse. Schedule I
controlled substances are deemed to have no accepted medical
uses and cannot be prescribed. Examples of drugs in the
California schedules drugs follow:
Cocaine, heroin and marijuana are Schedule I drugs.
Methamphetamine, oxcycodone and codeine are Schedule II
drugs.
Barbituates (tranquilizers, anabolic steroids and
specified narcotic, pain medications are Schedule III
drugs.
Benzodiazapines (Valium) and phentermine (diet drug) are
Schedule IV drugs.
Specified narcotic pain medications with active
non-narcotic active ingredients are Schedule V drugs.
(Health & Safety Code �� 11054-11058.)
Existing law makes it unlawful for any person to use, or be
under the influence of specified controlled substances, or
narcotic drugs classified in Schedules III, IV, or V, except
when administered under the direction of a person licensed by
the state to prescribe controlled substances. Conviction of a
violation of this statute is a misdemeanor punishable by a term
of not less than 90 days nor more than one year in the county
jail. (Health and Safety Coode � 11550(a).)
This bill provides that it is unlawful for a person to drive a
vehicle if his or her blood contains any drug classified in
Schedule I, II, III or IV under the California Uniform
Controlled Substances Act, unless the drug was consumed in
accordance with a valid prescription.
This bill defines a "valid prescription" as a prescription
issued for a legitimate medical purpose in the usual course of
professional practice by a practitioner who has examined the
patient or by a covering practitioner.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
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137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Drugged driving is a serious and growing problem in
California. Driving under the influence of any drug
that acts on the brain could impair motor skills,
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reaction time and judgment.
It is very dangerous for both the driver and innocent
motorists. Despite ongoing efforts to train police
officers, current drugged driving laws do not support
or encourage enforcement, prosecution and appropriate
treatment of drugged driving offenders.
To more effectively address drugged driving, SB 289
creates a zero tolerance law, making it a crime for a
person to operate a motor vehicle with illegal drugs in
his or her body.
This approach provides law enforcement the tools they
need to prosecute drugged drivers and create a better
path to substance abuse treatment. Drugs legally
prescribed by a licensed health care practitioner are
excluded under the bill.
2. Zero Tolerance for Drugs While Driving
This bill would make it illegal to drive with any amount of a
Schedule I, II, III, IV drug in one's system, even if the person
exhibits no signs of impairment. The per se law for alcohol is
.08% Blood Alcohol Level (BAC). A person driving .08% BAC is
guilty of a DUI even if he or she is not visibly impaired. The
.08% BAC is based on scientific studies showing that most people
are impaired at that level.
Under existing law, prosecutors can charge a Vehicle Code
Section 23152 violation for DUI under the combined influence of
alcohol and a drug, or DUI of a drug. However, in such a case,
it is necessary for the prosecutor to prove that the person's
driving was impaired. "For a defendant to be guilty of driving
while under the influence of drugs in violation of Vehicle Code
Section 23152(a), 'the drug(s) must have so far affected the
nervous system, the brain, or the muscles of the individual as
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to impair to an appreciable degree the ability to operate a
motor vehicle in a manner like that of an ordinarily prudent and
cautious person in full possession of his or her faculties,'"
citing People v. Enriquez , 42 Cal. App. 4th at p. 665; Gilbert
v. Municipal Court , 73 Cal. App. 3d at p. 727. "Driving while
under the influence of drugs involves a greater degree of
impairment of an individual's faculties, and in that respect is
not similar to merely being under the influence of drugs."
(People v. Canty, 32 Cal. 4th 1266 (2004).)
Cases of DUI of drugs can be successfully prosecuted if the
arresting officer's testimony and any other evidence indicates
to the prosecutor that he or she will be able to prove that
ingestion of a controlled substance affected the nervous system,
the brain, or the muscles of the individual as to "impair to an
appreciable degree the ability to operate a motor vehicle in a
manner like that of an ordinarily prudent and cautious person in
full possession of his or her faculties." (Id.) Similarly,
even if a person's BAC level is below the .08% per se amount a
case can be brought if there is credible evidence that the
defendant was intoxicated.
3. Number of DUI Drugs
The author and supporters assert that DUI of drugs is a growing
problem in California. However, until AB 2552 (Torres), which
took effect in January of this year, it was not possible to
determine exactly how many DUI of drugs arrests and convictions
occurred yearly in California because they were charged under
the combined alcohol or drugs provision. According to the
Senate Public Safety analysis of AB 2552:
While the "the number of alcohol-and drug-involved
crash fatalities has decreased for the past 5 years,"
including a reduction in the number of drugs only
convictions, and "the greatest proportion of crash
fatalities remains alcohol-
related" the separation between drug and alcohol in
this bill would allow clearer delineation as to which
DUI cases where alcohol involved and which were drug
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involved."<1>
Beginning this year, DMV will now be able to collect data on
drug arrests and convictions so that the extent of the DUI drug
problem can be determined.
4. Length of Presence of Drug in System
According to a United States Department of Justice publication
(United States Department of Justice, Office of Justice Programs
"Drug Courts Program Office," Prepared by the Drug Court
Clearinghouse and Technical Assistance Project, "Drug Testing in
a Drug Court Environment," (May 2000)), the following drugs
remain in the system for up to three days or longer:
Amphetamine/In urine: one to two days; Opiates: three days
(including heroin, morphine, codeine). The article states, "May
be longer for chronic users;" and Propoxyphene (Darvon, etc.):
six hours to two days. Thus, at the time of the test of a
driver, the chemical test administered may prove only past
conduct unrelated to the driving in question.
5. The Time it Takes for a Drug to Be Eliminated from the
System
According to a report issued by the United Nations Office on
Drugs and Crime:
Drugs vary by their elimination half-lives, which is
the time required for the blood levels to decline by
50%. The half-life of a drug is heavily influenced by
a variety of factors, including the individual's age,
sex, physical condition and clinical status. A
compromised liver and the concurrent presence of
another disease or drug have the potential of enhancing
the toxic effects of the drug by slowing down the
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<1> California DMV, 2012 Annual Report of the California DUI
Management Information System; Annual report to the Legislature
of the State of California, January 2012 pp. 63 and 64
http://apps.dmv.ca.gov/about/profile/rd/r_d_report/Section_5/S5-2
36.pdf
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elimination process. Under different clinical
conditions, however, the process may be speeded up.
Therefore, great variation may be found in the
half-lives of the same drug.
Approximately six half-lives are required to eliminate
99% of any drug. Because the half-life of cocaine is
relatively short, averaging one hour, only six hours
are needed for the elimination of 99% of the drug.
Cocaine metabolites have a longer half-life and can be
detected for a considerably longer period of time
through urine drug assays. Compared with cocaine,
phenobarbital has a much longer half-life (80 to 120
hours), so that at least 480 hours, or 20 days, are
required to eliminate 99% of the drug. Since there is
much variation in the half-lives of different drugs and
the absolute amount of drug present can be very small,
it is crucial that the appropriate body fluid for
analysis is selected for testing.
Elimination of ethanol [alcohol] follows a different
pattern. Its levels decline almost linearly over time.
The average elimination rate is between 15 mg/100 ml
and 20 mg/100 ml (0.015-0.02 per cent) per hour,
although rates of between 10 mg/100 ml and 30 mg/100 ml
(0.01-0.03 per cent) per hour have also been observed.
In the alcoholic patient, the elimination rate is
generally higher. In forensic calculations, a rate of
15 mg/100 ml (0.015%) per hour is usually used.
(http://www.unodc.org/unodc/en/data-and-analysis/bulleti
n/bulletin_1993-01-01_2_page005.html)
6. Valid Prescription
This bill defines a "valid prescription" as a prescription
issued for a legitimate medical purpose in the usual course of
professional practice by a practitioner who has examined the
patient or by a covering practitioner. A person who has a valid
prescription would not be subject to the zero tolerance
provision of this bill but could still be convicted if
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intoxicated. One question may be, does a valid prescription
last indefinitely? Is a prescription for Vicodin given for pain
after a surgery still a "valid prescription" 2 months later when
taken by the patient? How about 2 years later?
7. Medical Marijuana
This bill would prohibit driving with marijuana in one's system,
even when recommended for use by a doctor because the
recommendation is not a prescription. The sponsors believe this
is appropriate because the recommendation for medical marijuana
is a recommendation and not a prescription.
The Drug Policy Alliance opposes this bill because it does not
make allowances for medical marijuana. They note:
According to the National Highway Traffic Safety
Administration, "It is difficult to establish a
relationship between a person's THC blood or plasma
concentration and performance impairing effects. It
is inadvisable to try and predict effects based on
blood THC concentrations alone, and currently
impossible to predict specific effects based on
THC-COOH concentrations."<2>
Although THC can appear in the blood for up to 30 days
after ingestion, research shows no impact on driving
ability 24 hours after ingestion, suggesting that
drivers could test positive for THC in the blood
without marked impairment<3>.
----------------------
<2> National Highway Safety Traffic Administration (2013). Drugs
and Human Performance Fact Sheet: Cannabis/Marijuana. Retrieved
March 18, 2013 from
http://www.nhtsa.gov/People/injury/research/job185drugs/cannabis.
htm .
<3> Ronen, A. et al (2008). Effects of THC on driving
performance, physiological state and subjective feelings
relative to alcohol. Accident Analysis and Prevention, 40:
926-934.
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This bill suggests that the presence of drug
metabolites is indicative of impairment, research by
the National Highway Traffic Safety Administration has
found this not to be the case for many illicit
substances including marijuana, cocaine, heroin and
methamphetamine, therefore, this law cannot be applied
accurately.<4><5>
8. Supporters
The California Narcotic Officers' Association, one of the
sponsors of this bill, believes this bill is necessary because:
Drugged driving has been increasing at an alarming
rate. Recent information provided by the Institute for
Behavior and Health underscores the seriousness of this
problem:
1. Conservative estimates are that 20% of
vehicular crashes in the United States are caused
by drugged driving. This translates into over
6700 deaths, 440,000 injuries and nearly $60
billion in costs annually.
2. National Roadside safety studies have
revealed that drugs were present more than seven
times as frequently as alcohol among weekend
nighttime drivers, with over 16% testing positive
for drugs against only 2% being at or above the
legal limit for alcohol.
3. Trauma room studies have shown that 51% of
---------------------
<4> Cary, P. (2006). THE MARIJUANA DETECTION WINDOW:
DETERMINING
THE LENGTH OF TIME CANNABINOIDS WILL REMAIN DETECTABLE
IN URINE FOLLOWING SMOKING: A CRITICAL REVIEW OF
RELEVANT RESEARCH AND CANNABINOID DETECTION GUIDANCE
FOR DRUG COURTS. National Drug Court Institute.
<5> National Highway Traffic Safety Administration (2012).
Drugs and Human Performance Fact Sheets.
http://www.nhtsa.gov/People/injury/research/job185drugs
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patients tested positive for illegal drugs,
compared to 34% who tested positive for alcohol.
This information provides eloquent testimony to the
growing problems of drugged driving. Put simply,
drugged driving now poses a danger on the scale of the
better known problem of drunk driving.
A number of supporters note:
Many individuals, often some of our youngest drivers,
think drug-taking has little impact on their ability to
drive or may even believe it adds to individual driving
prowess. Drug impairment varies according to the
personal differences, drug type, dosage, length of time
in one's system, or added alcohol use. We note, for
example, cannabis can cause concentration to wander and
affect reaction time. Cocaine can lead to misjudging
driving speed, stopping distances, and can be
aggressive/erratic driving. If a driver is alert at
first, effects may wear off quickly and lead to
increased danger of falling asleep at the wheel. Drugs
with hallucinogenic properties can distort a person's
sense of vision and even allow for sounds that are not
there.
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General public education on drugs and driving is often
blissfully based on recreational drug use, mingled with
alcohol and unfortunately, their ignorance does not
remain bliss when it comes to getting behind the wheel
while under the influence.
9. Opposition and Concerns
A consistent argument among the opposition is that unlike
existing DUI laws, this bill does not prohibit impairment.
Law Enforcement Against Prohibition, which raises concerns about
the bill stating that they "support public safety practices and
legislation that is based on best practices and scientific
research," argues:
This bill will not improve public safety. It will
serve only to unjustly jail persons innocent of
impairment while driving and further reduce the limited
criminal justice and incarceration resources we have
left in our state to arrest, prosecute and jail
tangible offenders of crimes against persons and
property.
They further note that:
We have read the latest Office of Traffic Safety OTS
press release that quotes the National Highway Traffic
Safety Administration (NHTSA) which states, "30 percent
of all drivers who were killed in motor vehicle crashes
in California in 2010 tested positive for legal and/or
illegal drugs?" What OTS left out of the report, but
remains on the NHTSA website is the fact that: "The
reader is cautioned that drug presence dos not
necessarily imply impairment." NHTSA further clarifies
that "for many drug types, drug presence can be
detected long after any impairment that might affect
driving has passed. For example, traces of marijuana
can be detected in blood samples several weeks after
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chronic users stop ingestion. Also, whereas the
impairment effects for various concentrations levels of
alcohol are well understood, little evidence is
available to link concentrations of other drug types of
driver performance." (Emphasis in original.)
The California DUI Lawyers Association also notes the lack of
scientific basis for determining when a person is impaired on
drugs:
The main problem with this proposed measure is that it
criminalizes any measurable amount of controlled
substance in a person's blood. There is absolutely no
scientific basis to support this measure. Experts in
the field are unable to form a consensus opinion as to
what level of a specific controlled substance impairs
most or all people. However, most, if not all, experts
would agree that this overbroad measure would
criminalize driving when most people are not impaired.
As written, a person who had a miniscule amount of any
controlled substance in their system would be convicted
of driving under the influence of a drug. Simply put,
this bill would criminalize such driving, even though
there is no evidence that the driver is impaired in any
manner whatsoever.
The California DUI Lawyers Association is also concerned about
the statutory presumption of guilt:
We are also opposed because the bill undermines the
basic tenant of "innocent until proven guilty" by
establishing a statutory presumption of guilt.
Pursuant to SB 289, the detection of any measurable
amount of a controlled substance renders a person
guilty absent any evidence that the person consumed the
controlled substance at or near the time of driving
unless the drug was consumed in accordance with a valid
prescription from a licensed health care practitioner.
Several days or even weeks may have passed since
consumption, yet SB 289 would still impose a
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presumption of guilt. The only means to counter an
inaccurate presumption is to force an accused to
testify, thereby rendering his or her right to remain
silent moot.
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