BILL ANALYSIS Ó
AB 539
Page 1
Date of Hearing: April 7, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
539 (Levine) - As Introduced February 23, 2015
SUMMARY: Authorizes the issuance of a search warrant to compel
a blood draw from a person suspected of operating a boat while
under the influence of alcohol or drugs. Specifically, this
bill:
1)Permits the issuance of a search warrant when all of the
following apply:
a) A blood sample constitutes evidence that tends to show a
violation of specified sections of the Harbors and
Navigation Code relating to the operation of a marine
vessel while under the influence of drugs or alcohol;
b) The person from whom the sample is being sought has
refused an officer's request to submit to, or has failed to
complete, a blood test; and,
c) The sample will be drawn from the person in a
reasonable, medically approved manner.
2)States that these provisions are not intended to abrogate the
court's duty to determine the propriety of issuing a search
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warrant on a case-by-case basis.
EXISTING LAW:
1)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. (U.S.
Const., 4th Amend.; Cal. Const., art. I, § 13.)
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
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate. (Pen. Code, § 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
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
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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.
h) 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.
i) When the property or things to be seized include an item
or any evidence that tends to show a violation of the Labor
Code, as specified.
j) When the property or things to be seized include a
firearm or any other deadly weapon at the scene of, or at
the premises occupied or under the control of the person
arrested in connection with, a domestic violence incident
involving a threat to human life or a physical assault.
aa) When the property or things to be seized include a
firearm or any other deadly weapon that is owned by, or in
the possession of, or in the custody or control of, a
person described in subdivision (a) of Section 8102 of the
Welfare and Institutions Code.
bb) When the property or things to be seized include a
firearm that is owned by, or in the possession of, or in
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the custody or control of, a person who is subject to the
prohibitions regarding firearms under specified provisions
of the Family Code.
cc) When the information to be received from the use of a
tracking device constitutes evidence that tends to show
that either a felony or a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code.
dd) When a sample of the blood of a person constitutes
evidence that tends to show a violation of misdemeanor
driving under the influence and the person from whom the
sample is being sought has refused an officer's request to
submit to, or has failed to complete, a blood test.
ee) When the property or things to be seized are firearms or
ammunition or both that are owned by, in the possession of,
or in the custody or control of a person who is the subject
of a gun violence re straining order. This final provision
does not go into effect until January 1, 2016. (Pen. Code,
§ 1524, subd. (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. (Pen. Code, § 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. (Pen. Code, § 1528, subd. (a).)
6)Prohibits a person from operating a vessel or manipulate water
skis, an aquaplane, or a similar device while under the
influence of an alcoholic beverage, any drug, or the combined
influence of an alcoholic beverage and any drug. (Harb. &
Nav. Code, § 655, subd. (b).)
7)Prohibits a person from operating any recreational vessel or
manipulating any water skis, aquaplane, or similar device if
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the person has an alcohol concentration of 0.08 percent or
more in his or her blood. (Harb. & Nav. Code, § 655, subd.
(c).)
8)Prohibits a person from operating any vessel other than a
recreational vessel if the person has an alcohol concentration
of 0.04 percent or more in his or her blood. (Harb. & Nav.
Code, § 655, subd. (d).)
9)Authorizes a peace officer who arrests a person for boating
under the influence to ask that person to submit to chemical
testing of his or her blood, breath, or urine for the purpose
of determining the drug or alcohol content of the blood.
(Harb. & Nav. Code, § 655.1.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 539
reasonably brings boating laws in line with DUI laws, and
provides law enforcement with the proper tools to investigate
and prosecute those boating under the influence."
2)Missouri v. McNeely: In Missouri v. McNeely (2013) 133 S.Ct.
1552, the United States Supreme Court held that the natural
dissipation of alcohol in the bloodstream does not constitute
an exigency in every drunk-driving investigation sufficient to
justify conducting a blood test without a warrant. Rather,
the court directed that the matter be determined on a
case-by-case assessment of the totality of the circumstances,
in which the dissipation element is a factor in evaluating
whether an exigency exists. "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." (Id. at p. 1561.)
Before the McNeely decision, the California Supreme Court had
applied older U.S. Supreme Court precedent, Schmerber v.
California (1966) 384 U.S. 757, and held that the evanescent
nature of blood alcohol created exigent circumstances and
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sufficient rationale for permitting warrantless chemical
testing following a DUI arrest. (See People v. Superior Court
(Hawkins) (1972) 6 Cal.3d 757, 761.)
When Missouri v. McNeely was decided, there was nothing in the
statute listing the types of evidence that may be obtained by
means of a search warrant that would authorize a warrant for a
DUI blood draw unless the crime under investigation was a
felony. The Legislature subsequently amended the statute
pertaining to grounds for the issuance of a search warrant to
allow law enforcement to obtain one on this basis. (Pen.
Code, § 1524, subd. (a)(13).)
However, the amendment to the statute did not cover misdemeanor
offenses involving boating under the influence. This bill
seeks to include those offenses as grounds for issuing a
search warrant.
3)Boating Accident Statistics: According to a 2013 report by
the California State Parks Division of Boating and Waterways,
between 2009 and 2013 32% of all boating fatalities in the
state involved alcohol. (See 2013 California Recreational
Boating Accident Statistics, p. 17,
http://dbw.ca.gov/Reports/BSRs/2013/2013_AccidentStats_CA_05_08
_2014.pdf .)
4)Argument in Support: The California State Sheriffs'
Association, the sponsor of this bill, states, " In 2013, the
United States Supreme Court (Missouri v. McNeely (2013) 569
U.S. ___ [133 S.Ct.1552]) ruled that the dissipation of
alcohol in a person's bloodstream does not constitute an
exigency in every case sufficient to justify conducting a
blood test without a warrant to determine whether a person was
driving an automobile while under the influence. This ruling
effectively requires law enforcement to obtain a search
warrant when it needs to conduct a forced blood draw on a
person who refuses to submit to, or fails to complete, a
chemical test. The ruling recognized that exigent
circumstances can arise, and in such a case, a warrantless
blood draw can be justified. However, absent an exigency, a
search warrant is required to compel a blood draw.
"Under existing California law, the authority to issue search
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warrants is generally limited to cases involving felonies. In
2013, in response to the Supreme Court's decision in McNeely,
the Legislature approved and the Governor signed SB 717
(DeSaulnier, Chapter 317, Statutes of 2013). This measure
permitted, but did not require, law enforcement to seek and
obtain a search warrant when a sample of the blood of a person
constitutes evidence that tends to show a violation of driving
a motor vehicle while under the influence of drugs and/or
alcohol and the person from whom the sample is being sought
has refused an officer's request to submit to, or has failed
to complete, a blood test.
"While SB 717 addressed the issue identified in McNeely for
cases involving driving under the influence, statutes
governing the operation of a marine vessel while under the
influence were not similarly amended. As such, there is no
specific statutory authority that allows law enforcement to
comply with the U.S. Supreme Court's holding in McNeely when
it comes to the need to compel a blood draw in a boating under
the influence case. AB 539 provides this limited authority to
obtain a search warrant in compliance with all existing state
and federal requirements when the alleged offense is the
misdemeanor of boating under the influence. Being able to
accurately and legally determine a person's intoxication level
will allow for appropriate enforcement of California's boating
laws while protecting the public's use and enjoyment of the
state's navigable waters."
5)Argument in Opposition: According to the Taxpayers for
Improving Public Safety, "The proposed amendment creates an
unprecedented presumption of guilt, or at least probable
cause, based upon speculative circumstantial evidence.
Although there is an absolute need to prevent the operation of
any vehicle under the influence, the most important purpose of
the law is to protect the innocent from unnecessary searches.
Each time the goal post is moved removing the protection from
unreasonable search and seizure, the slippery slope gets
shorter as we near the bottom of the slope gets shorter as we
near the bottom of the slope and accept the premise that the
'ends justify the means,' the death knell of democracy."
6)Related Legislation:
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a) AB 39 (Medina), would revise the procedure by which a
magistrate may issue a search warrant by use of a telephone
and facsimile transmission, electronic mail, or computer
server. AB 39 is pending referral in the Senate Rules
Committee.
b) AB 1104 (Rodriguez), would authorize the issuance of a
search warrant on the grounds that the property or thing to
be seized consist of an item or constitute evidence that
tends to show a violation of any of the crimes that were
previously felonies but reduced to misdemeanors under
Proposition 47. AB 1104 is pending hearing in this
committee.
c) AB 1365 (Lackey), would provide for oral fluids testing
for purposes of determining if a driver is driving under
the influence. AB 1365 is pending hearing in this
committee.
7)Prior Legislation:
a) AB 1014 (Skinner), Chapter 872, Statutes of 2014,
provided, in pertinent part, that a search warrant may be
issued when the property or things to be seized are
firearms or ammunition that are in the custody or control
of, or is owned or possessed by, a person who is the
subject of a gun violence restraining order.
b) SB 717 (DeSaulnier), Chapter 317, Statutes of 2013,
authorized the issuance of a search warrant to allow a
blood draw 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.
REGISTERED SUPPORT / OPPOSITION:
Support
California State Sheriffs' Association (Sponsor)
California Association of Harbor Masters and Port Captains
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California District Attorneys Association
California Yacht Brokers Association
Marina Recreation Association
Peace Officers Research Association of California
Worldwide Boaters Safety Group
Opposition
Taxpayers for Improving Public Safety
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744