BILL ANALYSIS Ó
SB 717
Page 1
Date of Hearing: June 25, 2013
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 717 (DeSaulnier) - As Amended: May 20, 2013
SUMMARY : Authorizes the issuance of a search warrant to allow
a blood draw or sample of other bodily fluids to be taken from a
person in a reasonable, medically approved manner as evidence
that the person has violated specified provisions relating to
driving under the influence, and the person has refused a peace
officer's request to submit to, or failed to complete a blood
test.
EXISTING LAW :
1)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.)
2)Defines a "search warrant" as a written order in the name of
the people, signed by a magistrate and directed to a peace
officer, commanding him or her to search for a person or
person, a thing or things, or personal property. (Penal Code
Section 1523.)
3)States 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
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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 Section 1524(a).]
4)Provides that a search warrant cannot be issued but upon
probable cause, supported by affidavit, naming or describing
the person to be searched or searched for, and particularly
describing the property, thing or things and the place to be
searched. (Penal Code Section 1525.)
5)Requires a magistrate to issue a search warrant if he or she
is satisfied of the existence of the grounds of the
application or that there is probable cause to believe their
existence. [Penal Code Section 1528(a).]
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "On April 17,
2013, the Supreme Court of the United States, in a 5-4 opinion
(Missouri v. McNeely), decided that in drunk-driving
investigations, it is now unlawful to conduct a blood test
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without consent. The decision effectively requires the
officers to obtain a warrant before they can take a suspect's
blood, if that suspect does not give consent. SB 717 simply
conforms California's Penal Code to adhere to this ruling by
specifying that an officer may request, and a court may grant,
a search warrant to perform a blood draw."
2)Argument in Support : The California District Attorneys
Association states, "On April 17, 2013, the United States
Supreme Court held, in Missouri v. McNeely, that absent
exigent circumstances, a search warrant in order to draw blood
from a person suspected of driving under the influence if that
person refuses to consent to a blood test. Specifically, the
Court found that the exigent circumstance of alcohol
dissipation alone cannot overcome the warrant requirement
without a showing of further exigent circumstances.
"The ruling resolves a split in jurisdictions around the
country. California had appellate case precedent going back
over 30 years in misdemeanors (and over 40 years for felony
DUI with injury/death) that a warrant was not required for a
blood draw in these cases. See People v. Ritchie (1982) 130
Cal.App.3d 455; People v. Superior Court (Hawkins) (1972) 6
Ca.3d 757.
"The ruling in McNeely presents a problem in California and
necessitates a legislative fix. In California, with limited
exception, the authority to get a search warrant under PC 1524
is limited to obtaining evidence of a felony. Up until now,
no statutory authority was needed because of case law
permitting warrantless blood draws.
"We respectfully request the Legislature's urgent assistance in
addressing this issue quickly because current law generally
does not permit the issuance of a search warrant in
misdemeanor cases. SB 717 would not require the issuance of a
search warrant for blood draw because a warrant is not needed
when exigencies exist. However, the bill would provide the
legal mechanism for an officer to request and a court to grant
a search warrant, which is vital inasmuch as no such process
exists."
3)Argument in Opposition : The California Attorneys for Criminal
Justice believe, "SB 717 is supposed to be a response to the
recent United States Supreme Court decision in Missouri v.
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McNeeley. SB 569 U.S. ___ (2013). The focus of the case was
whether a routine arrest for a DUI offense, combined with a
refusal to submit to a blood draw, justified a per se rule
allowing for a forced blood draw without a warrant. Or as the
court described it, 'a compelled physical intrusion beneath
McNeeley's skin and into his vein to obtain a sample of his
blood for use as evidence?Such an invasion of bodily integrity
implicates an individual's most personal and deep0rooted
expectation of privacy.'
"In the 8- decision written by Justice Sotomayor, the court
concluded that there was no basis for a per se rule allowing
blood draws over the objection of an individual. There was no
restriction on why the person refused. More specifically, the
court concluded that these facts failed to justify an
exception to the warrant requirement. Essentially, the case
promjulgated a prohibition on law enforcement securing a blood
sample over the objection of a driver unless a court has
previously weighed in authorizing the intrusion.
"The sponsors are not turning this decision on its head by
pursuant an affirmative law to articulate the proper basis for
a warrant. That is not what the U.S. Supreme Court decided.
Justice Sotomayor did not go so far as to conclude that
warrants are justified in DUI refusal cases. That question
was untouched and remains open. However, SB 717 is now trying
to create such a rule on the subject. The McNeeley case more
precisely stands for the principle that courts must review
each case independently and apply traditional constitutional
scrutiny to determine whether a warrant is justified. There
is nothing in the decision to suggest that a warrant should be
issued in any DUI refusal case. Just that a court must review
the facts before a peace officer can attempt to stick a needle
in someone's vein. Unfortunately, SB 717 does not reflect
this principle and instead goes beyond the parameters of the
Supreme Court's decision."
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorney General
California District Attorneys Association
California State Sheriffs' Association
Judicial Council of California
SB 717
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Los Angeles District County Attorney
San Diego County District Attorney
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744