BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 717|
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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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