BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 717 (DeSaulnier)
As Amended April 25, 2013
Hearing date: April 30, 2013
Penal Code (Urgency)
MK:mc
WARRANTS
HISTORY
Source: Los Angeles District Attorneys Association
California District Attorneys Association
Prior Legislation: None
Support: Unknown
Opposition:None known
KEY ISSUE
SHOULD A WARRANT BE PERMITTED TO BE ISSUED IN A DUI WHEN A PERSON
REFUSES TO CONSENT TO HAVING HIS OR HER BLOOD DRAWN?
PURPOSE
The purpose of this bill is to amend California law to conform
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to the recent Supreme Court case of Missouri v. McNeely and
authorize a warrant to allow officers to draw blood in a
misdemeanor DUI when a person refuses to consent.
The U.S. Constitution provides that "the right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched and the persons or things to be seized." (4th
Amendment of the U.S. Constitution.)
The California Constitution provides that "the right of the
people to be secure in their persons, houses, papers and effects
against unreasonable seizures and searches may not be violated;
and a warrant may not issue except on probable cause, supported
by oath or affirmation, particularly describing the place to be
searched and the persons and things to be seized." (Article I,
Section 13 of the California Constitution.)
Existing law defines a "search warrant" as an order in writing
in the name of the People, signed by a magistrate, directed to a
peace officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate. (Penal Code § 1523.)
Existing law provides that a search warrant may be issued upon
any of the following grounds:
a) When the property was stolen or embezzled.
b) When the property or things were used as the means of
committing a felony.
c) When the property or things are in the possession of
any person with the intent to use them as a means of
committing a public offense, or in the possession of
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another to whom he or she may have delivered them for the
purpose of concealing them or preventing them from being
discovered.
d) When the property or things to be seized consist of
any item or constitute any evidence that tends to show a
felony has been committed, or tends to show that a
particular person has committed a felony.
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of
a child, or possession of matter depicting sexual conduct
of a person under the age of 18 years, has occurred or is
occurring.
f) When there is a warrant to arrest a person.
g) When a provider of electronic communication
service or remote computing service
has records or evidence, showing that property was stolen
or embezzled constituting a misdemeanor, or that
property or things are in the possession of any person
with the intent to use them as a means of committing a
misdemeanor public offense, or in the possession of
another to whom he or she may have delivered them for the
purpose of concealing them or preventing their discovery.
(Penal Code § 1524(a).)
Existing case law provides "that in drunk-driving
investigations, the natural dissipation of alcohol in the
bloodstream does not constitute an exigency in every case
sufficient to justify conducting a blood test without a warrant.
... In those drunk-driving investigations where police
officers can reasonably obtain a warrant before a blood sample
can be drawn without significantly undermining the efficacy of
the search, the Fourth Amendment mandates that they do so."
(Missouri v. McNeely, 2013 569 U.S.___.)
This bill would allow a warrant for a blood draw in a
misdemeanor DUI when a person does not consent and when exigent
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circumstances do not exist.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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
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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
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."
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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:
During the past 10 years, 5055 Americans have been
killed in combat in the areas of Afghanistan and Iraq.
In that same period, alcohol-impaired drivers in the US
killed 121,185 people, an average rate of 1 every 44
minutes. That means that DUI is 24 times more deadly
for Americans than foreign war. It also means that
conviction of DUI offenders is vital to protection of
the public safety. In turn, admissibility of BAC
evidence is often crucial to obtaining an appropriate
conviction.
In Schmerber v. California (1966) 384 US 757, 771, the
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US Supreme Court ruled that taking a blood sample from
a DUI arrestee was a reasonable warrantless search and
seizure, under the "special facts" of that case. For
the intervening 47 years, California courts (and many
others) have understood Schmerber to allow officers
routinely to draw blood in DUI cases because of the
evanescent nature of BAC evidence. People v. Superior
Court (Hawkins) (1972) 6 Cal.3d 757, 761.
However, on April 17, 2013, the Supreme Court of the
United States handed down its judgment in Missouri v.
Mcneely, a case where the court was asked to decide
whether the mere fact that the human body metabolizes
alcohol at a steady rate provided enough of an
emergency or exigency to allow police officers to draw
the blood of a person they have arrested for DWI
without first getting a warrant.
In October 2010, Tyler McNeely was accused of driving
above the speed limit and crossing the centerline.
After stopping McNeely he was placed under arrest for
DUI by a Missouri peace officers. McNeely refused to
provide either a breath or blood sample as requested by
the arresting officer. He was then taken to St.
Francis Medical Center in Cape Girardeau, where a blood
sample was forcibly taken even though McNeely stated
that he would not consent to having his blood drawn for
an alcohol test and the officer did not have a warrant.
On appeal to the United States Supreme Court, the state
of Missouri argued that the ongoing dissipation of
McNeely's blood alcohol content (BAC) evidence through
metabolism and elimination justified a warrantless
blood extraction.
In a 5-4 opinion, the Supreme Court ruled that in the
absence of specific facts showing that unavoidable
delay would "negatively affect the probative value of
the results," a warrant is required. The Supreme Court
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stated, "We hold that in drunk-driving investigations,
the natural dissipation of alcohol in the bloodstream
does not constitute an exigency in every case
sufficient to justify conducting a blood test without a
warrant. ? In those drunk-driving investigations
where police officers can reasonably obtain a warrant
before a blood same can be drawn without significantly
undermining the efficacy of the search, the Fourth
Amendment mandates that they do so."
Thus, if an individual suspected of driving under the
influence refuses to voluntarily submit to a blood draw
(chemical test), he or she is no longer subject to a
forced blood draw without law enforcement first
obtaining a search warrant in the absence of some other
exigent circumstance that makes an immediate
warrantless blood draw reasonably necessary.
2. Missouri v. McNeely
On April 17, 3013, the U.S. Supreme Court released its decision
on Missouri v. McNeely holding that "in drunk-driving
investigations, the natural dissipation of alcohol in the
bloodstream does not constitute an exigency in every case
sufficient to justify conducting a blood test without a
warrant." (Missouri v. McNeely, 2013 U.S. LEXIS 3160 (U.S. Apr.
17, 2013).) Current California law only allows a warrant to
obtain evidence of a felony, which causes a problem since most
DUI convictions are misdemeanors. This bill, which is an
urgency provision, will allow a warrant to issue for a blood
draw in a DUI when the person refuses to consent to the blood
draw and when no exigent circumstance exists.
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