BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 539 Hearing Date: June 9, 2015
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|Author: |Levine |
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|Version: |February 23, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Search Warrants
HISTORY
Source: California State Sheriffs' Association
Prior Legislation:SB 717 (DeSaulnier) Ch. 317, Stats. 2013
Support: California Association of Harbor Masters and Port
Captains; California District Attorneys Association;
California Police Chiefs Association; California Yacht
Brokers Association; Judicial Council of California;
Marina Recreation Association; National Marine
Manufacturers Association; Peace Officers Research
Association of California; Recreational Boaters of
California; Sacramento County Deputy Sheriffs'
Association; Worldwide Boaters Safety Group
Opposition:Taxpayers for Improving Public Safety
Assembly Floor Vote: 79 - 0
PURPOSE
The purpose of this bill is to authorize the issuance of a
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search warrant to compel a blood draw from a person suspected of
operating a boat while under the influence of alcohol or drugs.
The US 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
of 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 be issued 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 provides that a search warrant may be issued upon
any of the following grounds:
When the property was stolen or embezzled;
When the property or things were used as the means of
committing a felony;
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;
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;
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
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of a person under the age of 18 years, has occurred or is
occurring;
When there is a warrant to arrest a person;
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;
When the property to be seized includes evidence of a
violation of specified Labor Code sections;
When the property to be seized includes a firearm or
deadly weapon or any other
deadly weapon at the scene of a domestic violence offense;
When the property to be seized includes a firearm or
deadly weapon owned by a person apprehended because of his
or her mental condition;
When the property to be seized is a firearm in
possession of a person prohibited under the family code;
When the information to be received from the use of a
tracking device under shows a specified violation of the
Fish and Game Code or Public Resources Code;
When a sample of blood would show evidence of a DUI; or,
Starting January 1, 2016, when the property to be seized
is a firearm owned by a person subject to a gun violence
restraining order. (Penal Code § 1524(a).)
Existing law 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 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
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before the magistrate. (Penal Code § 1523.)
Existing law 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.
(Harbors & Navigations Code, § 655(b).)
Existing law prohibits a person from operating any recreational
vessel or manipulating any water skis, aquaplane, or similar
device if the person has an alcohol concentration of 0.08
percent or more in his or her blood. (Harbors & Navigations
Code, § 655 (c).)
Existing law 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.
(Harbors & Navigations Code, § 655(d).)
Existing law permits 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.
(Harbors & Navigations Code, § 655.1.)
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) 133 S. Ct. 1552)
This bill permits the issuance of a search warrant when all of
the following apply:
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
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vessel while under the influence of drugs or alcohol;
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,
The sample will be drawn from the person in a
reasonable, medically approved manner.
This bill states that these provisions are not intended to
abrogate the court's duty to determine the propriety of issuing
a search warrant on a case-by-case basis.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
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10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Existing law fails to grant the statutory authority to law
enforcement to seek and obtain a search warrant when a
person suspected of operating a marine vessel under the
influence of drugs and/or alcohol refuses to submit to, or
fails to complete, a blood test.
Unfortunately, boating under the influence is a serious
public safety problem. Intoxicated boaters have caused
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devastating accidents.
Studies indicate alcohol use is the leading known
contributing factor in fatal boating accidents. According
to a report by the California State Parks Division of
Boating and Waterways, from 2009-2013, 32% of all boating
related fatalities in the state involved alcohol.
AB 539 helps improve boating safety by allowing law
enforcement to obtain a search warrant to test the blood of
a person suspected of operating a marine vessel while under
the influence of drugs and/or alcohol.
2. Warrant for Misdemeanor DUI While Boating
On April 17, 3013 the U.S. Supreme Court released its decision
on Missouri v. McNeely holding 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." (Missouri v McNeely (2013) 133 S. Ct. 1552) At that
time California law only allowed a warrant to obtain evidence of
a felony, which causes a problem since most DUI convictions are
misdemeanors. In order to address the situation that may have
hindered the prosecution of DUIs, SB 717 (DeSaulnier), Chapter
317, Statutes 2013, was an urgency provision, that allowed a
warrant to issue for a blood draw in a DUI when the person
refuses to consent to the blood draw and when no exigent
circumstance exists. This bill would also allow a warrant for a
person suspected of DUI while boating when the person refused to
submit to an officer's request to submit to a blood test and the
sample will be drawn in a reasonable medically approved manner.
--END --
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