BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 717|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: SB 717
Author: DeSaulnier (D) and Correa (D)
Amended: 4/25/13
Vote: 27 - Urgency
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/30/13
AYES: Hancock, Anderson, Block, De León, Knight, Liu, Steinberg
SUBJECT : Search warrants: driving under the influence
SOURCE : California District Attorneys Association
DIGEST : This bill authorizes a warrant to allow officers to
draw blood in a misdemeanor driving under the influence (DUI)
when a person refuses to consent, as specified.
ANALYSIS : The United States 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 to 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
CONTINUED
SB 717
Page
2
searched and the persons and things to be seized." (Article I,
Section 13 of the California Constitution)
Existing law:
1. 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/her to search for a person(s), a
thing(s), or personal property, and in the case of a thing(s)
or personal property, bring the same before the magistrate.
(Penal Code (PEN) Section 1523)
2. 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
another to whom he/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
CONTINUED
SB 717
Page
3
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/she may have
delivered them for the purpose of concealing them or
preventing their discovery. (PEN Section 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 allows a warrant for a blood draw in a misdemeanor DUI
when a person does not consent and when exigent circumstances do
not exist.
Comments
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 [blood alcohol content] evidence is often crucial to
obtaining an appropriate conviction.
In Schmerber v. California (1966) 384 US 757, 771, the U.S.
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 U.S. Supreme Court handed down
CONTINUED
SB 717
Page
4
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 U.S. 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 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
CONTINUED
SB 717
Page
5
No
SUPPORT : (Verified 5/7/13)
California District Attorneys Association (source)
JG:k 5/7/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED