BILL ANALYSIS                                                                                                                                                                                                    



                                                                     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  








                                                                     AB 539


                                                                    Page  2


            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  








                                                                     AB 539


                                                                    Page  3


               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  








                                                                     AB 539


                                                                    Page  4


               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  








                                                                     AB 539


                                                                    Page  5


            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  








                                                                     AB 539


                                                                    Page  6


            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  








                                                                     AB 539


                                                                    Page  7


            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:








                                                                     AB 539


                                                                    Page  8



             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








                                                                     AB 539


                                                                    Page  9


          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