BILL ANALYSIS                                                                                                                                                                                                    



          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.



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