BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                 UNFINISHED BUSINESS


          Bill No:  SB 717
          Author:   DeSaulnier (D) and Correa (D)
          Amended:  8/30/13
          Vote:     27 - Urgency

           
           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 4/30/13
          AYES:  Hancock, Anderson, Block, De León, Knight, Liu, Steinberg

          SENATE FLOOR  :  39-0, 5/28/13
          AYES:  Anderson, Beall, Berryhill, Block, Calderon, Cannella,  
            Corbett, Correa, De León, DeSaulnier, Emmerson, Evans, Fuller,  
            Gaines, Galgiani, Hancock, Hernandez, Hill, Hueso, Huff,  
            Jackson, Knight, Lara, Leno, Lieu, Liu, Monning, Nielsen,  
            Padilla, Pavley, Price, Roth, Steinberg, Torres, Walters,  
            Wolk, Wright, Wyland, Yee
          NO VOTE RECORDED:  Vacancy

           ASSEMBLY FLOOR  :  74-0, 9/3/13 - See last page for vote


           SUBJECT :    Search warrants:  driving under the influence

           SOURCE  :     California District Attorneys Association
                      Los Angeles County District Attorney
                      San Diego County District Attorney


           DIGEST  :    This bill authorizes a search warrant to allow  
          officers to take a sample of the blood as evidence in  
          misdemeanor driving under the influence (DUI) when a person  

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          refuses to consent, as specified.

           Assembly Amendments  remove "other bodily fluid" as evidence that  
          officers are allowed to take a sample of, when a person refuses  
          consent.  
           
           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  
          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.  

          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  
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               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/she may have delivered  
               them for the purpose of concealing them or preventing their  
               discovery.  

          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 authorizes a search warrant for a blood draw from a  
          person in a reasonable, medically approved manner when the  
          sample constitutes evidence to show that the person has violated  
          specified provisions related to driving under the influence, and  
          the person has refused an officer's request to submit to, or has  
          failed to complete, a blood test, as specified.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   Local:  
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           No

           SUPPORT  :   (Verified  9/3/13)

          California District Attorneys Association (co-source)
          Los Angeles County District Attorney (co-source)
          San Diego County District Attorney (co-source)
          California Attorney General, Kamala D. Harris
          California Association of Crime Lab Directors
          California State Sheriffs' Association
          Judicial Council of California
          Peace Officers Research Association of California

           OPPOSITION  :    (Verified  9/3/13)

          California Attorneys for Criminal Justice

           ARGUMENTS IN SUPPORT  :    According to the Los Angeles County  
          District Attorney's Office:

            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  
            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  
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            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.

           ARGUMENTS IN OPPOSITION  :    The California Attorneys for  
          Criminal Justice (CACJ) states:

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            CACJis concerned that the proposal will lead to a dilution of  
            key constitutional protections against unreasonable searches  
            by the government; in this case, the ability to stick a needle  
            into someone's vein.  SB 717 is unnecessary and may be in  
            conflict with California's "Truth in Prosecution Act" as  
            adopted by Proposition 8 which prohibits a restriction of  
            constitutional protections against unreasonable searches. CACJ  
            asks that SB 717 be put on hold for this year to allow for all  
            stakeholders and constitutional scholars to review the issue.   
            An improper infringement of constitutional protections could  
            cause irreparable harm to those who become victim of forced  
            intrusions of their bodies by law enforcement.  There is too  
            much at stake to move forward a bill that has unresolved  
            questions.

            McNeeley Decision:  Routine DUI arrest does not justify a  
            warrantless blood draw

            SB 717 is supposed to be a response to the recent United  
            States Supreme Court decision in Missouri v. McNeeley. 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 deep-rooted expectation of  
            privacy."
             
            In the 8-1 decision written by Justice Sotornayor, 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 promulgated a prohihition 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 now turning this decision on its head by  
            pursuing an affirmative law to articulate the proper basis for  
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            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 cases; 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.


           ASSEMBLY FLOOR  :  74-0, 9/3/13
          AYES:  Achadjian, Alejo, Allen, Atkins, Bigelow, Bloom,  
            Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian  
            Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,  
            Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox, Frazier,  
            Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell,  
            Gray, Grove, Hagman, Harkey, Roger Hernández, Holden, Jones,  
            Levine, Linder, Logue, Lowenthal, Maienschein, Mansoor,  
            Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi,  
            Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel  
            Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,  
            Ting, Wagner, Waldron, Weber, Wieckowski, Wilk, Williams, John  
            A. Pérez
          NO VOTE RECORDED:  Ammiano, Hall, Jones-Sawyer, Yamada, Vacancy,  
            Vacancy


          JG:k  9/3/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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