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 | | ----------------------------------------------------------------- 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 CONTINUED SB 717 Page 2 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 CONTINUED SB 717 Page 3 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: CONTINUED SB 717 Page 4 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 CONTINUED SB 717 Page 5 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: CONTINUED SB 717 Page 6 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 CONTINUED SB 717 Page 7 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 **** END **** CONTINUED