California Legislature—2015–16 Regular Session

Assembly Bill No. 1356

Introduced by Assembly Member Lackey

February 27, 2015

An act to amend Section 23612 of the Vehicle Code, relating to vehicles.

LEGISLATIVE COUNSEL’S DIGEST

AB 1356, as introduced, Lackey. Vehicles: driving under the influence: drug testing.

Existing law provides that a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood for the purpose of determining the drug content of his or her blood, if lawfully arrested for driving under the influence of alcohol or drugs. Existing law provides that if a blood test is unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.

This bill would provide that a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or oral fluids for the purpose of determining the drug content of his or her blood or oral fluids, if lawfully arrested for driving under the influence of drugs. If a blood test or oral fluid test is unavailable, the person would be deemed to have given his or her consent to chemical testing of his or her urine and would be required to submit to a urine test.

By requiring local law enforcement to provide for oral fluids testing in connection for purposes of determining if a driver is driving under the influence of drugs, this bill would impose a state-mandated local program.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 23612 of the Vehicle Code is amended
to read:

23612.  

(a) (1) (A) A person who drives a motor vehicle is
deemed to have given his or her consent to chemical testing of his
or her blood or breath for the purpose of determining the alcoholic
content of his or her blood, if lawfully arrested for an offense
allegedly committed in violation of Section 23140, 23152, or
23153. If a blood or breath test, or both, are unavailable, then
paragraph (2) of subdivision (d) applies.

(B) A person who drives a motor vehicle is deemed to have
given his or her consent to chemical testing of his or her blood begin insert or
oral fluids end insert for the purpose of determining the drug content of his
or her blood begin insert or oral fluids end insert , if lawfully arrested for an offense
allegedly committed in violation of Section 23140, 23152, or
23153. If a blood test is unavailable, the person shall be deemed
to have given his or her consent to chemical testing of his or her
urine and shall submit to a urine test.

(C) The testing shall be incidental to a lawful arrest and
administered at the direction of a peace officer having reasonable
cause to believe the person was driving a motor vehicle in violation
of Section 23140, 23152, or 23153.

(D) The person shall be told that his or her failure to submit to,
or the failure to complete, the required chemical testing will result
in a fine, mandatory imprisonment if the person is convicted of a
violation of Section 23152 or 23153, and (i) the suspension of the
person’s privilege to operate a motor vehicle for a period of one
year, (ii) the revocation of the person’s privilege to operate a motor
vehicle for a period of two years if the refusal occurs within 10
years of a separate violation of Section 23103 as specified in
Section 23103.5, or of Section 23140, 23152, or 23153 of this
code, or of Section 191.5 or subdivision (a) of Section 192.5 of
the Penal Code that resulted in a conviction, or if the person’s
privilege to operate a motor vehicle has been suspended or revoked
pursuant to Section 13353, 13353.1, or 13353.2 for an offense that
occurred on a separate occasion, or (iii) the revocation of the
person’s privilege to operate a motor vehicle for a period of three
years if the refusal occurs within 10 years of two or more separate
violations of Section 23103 as specified in Section 23103.5, or of
Section 23140, 23152, or 23153 of this code, or of Section 191.5
or subdivision (a) of Section 192.5 of the Penal Code, or any
combination thereof, that resulted in convictions, or if the person’s
privilege to operate a motor vehicle has been suspended or revoked
two or more times pursuant to Section 13353, 13353.1, or 13353.2
for offenses that occurred on separate occasions, or if there is any
combination of those convictions, administrative suspensions, or
revocations.

(2) (A) If the person is lawfully arrested for driving under the
influence of an alcoholic beverage, the person has the choice of
whether the test shall be of his or her blood or breath and the officer
shall advise the person that he or she has that choice. If the person
arrested either is incapable, or states that he or she is incapable,
of completing the chosen test, the person shall submit to the
remaining test. If a blood or breath test, or both, are unavailable,
then paragraph (2) of subdivision (d) applies.

(B) If the person is lawfully arrested for driving under the
influence of any drug or the combined influence of an alcoholic
beverage and any drug, the person has the choice of whether the
test shall be of his or her blood begin insert , oral fluids, end insert or breath, and the
officer shall advise the person that he or she has that choice.

(C) A person who chooses to submit to a breath test may also
be requested to submit to a blood test begin insert or oral fluids test end insert if the
officer has reasonable cause to believe that the person was driving
under the influence of a drug or the combined influence of an
alcoholic beverage and a drug and if the officer has a clear
indication that a blood test begin insert or oral fluids test end insert will reveal evidence
of the person being under the influence. The officer shall state in
his or her report the facts upon which that belief and that clear
indication are based. The officer shall advise the person that he or
she is required to submit to an additional test. The person shall
submit to and complete a blood test begin insert or oral fluids test end insert . If the person
arrested is incapable of completing the blood test begin insert or oral fluids
test end insert , the person shall submit to and complete a urine test.

(3) If the person is lawfully arrested for an offense allegedly
committed in violation of Section 23140, 23152, or 23153, and,
because of the need for medical treatment, the person is first
transported to a medical facility where it is not feasible to
administer a particular test of, or to obtain a particular sample of,
the person’s blood begin insert , oral fluids, end insert or breath, the person has the choice
of those tests, including a urine test, that are available at the facility
to which that person has been transported. In that case, the officer
shall advise the person of those tests that are available at the
medical facility and that the person’s choice is limited to those
tests that are available.

(4) The officer shall also advise the person that he or she does
not have the right to have an attorney present before stating whether
he or she will submit to a test or tests, before deciding which test
or tests to take, or during administration of the test or tests chosen,
and that, in the event of refusal to submit to a test or tests, the
refusal may be used against him or her in a court of law.

(5) A person who is unconscious or otherwise in a condition
rendering him or her incapable of refusal is deemed not to have
withdrawn his or her consent and a test or tests may be
administered whether or not the person is told that his or her failure
to submit to, or the noncompletion of, the test or tests will result
in the suspension or revocation of his or her privilege to operate
a motor vehicle. A person who is dead is deemed not to have
withdrawn his or her consent and a test or tests may be
administered at the direction of a peace officer.

(b) A person who is afflicted with hemophilia is exempt from
the blood test required by this section, but shall submit to, and
complete, begin insert an oral fluids test or end insert a urine test.

(c) A person who is afflicted with a heart condition and is using
an anticoagulant under the direction of a licensed physician and
surgeon is exempt from the blood test required by this section, but
shall submit to, and complete, begin insert an oral fluids test or end insert a urine test.

(d) (1) A person lawfully arrested for an offense allegedly
committed while the person was driving a motor vehicle in
violation of Section 23140, 23152, or 23153 may request the
arresting officer to have a chemical test made of the arrested
person’s blood or breath for the purpose of determining the
alcoholic content of that person’s blood, and, if so requested, the
arresting officer shall have the test performed.

(2) If a blood or breath test is not available under subparagraph
(A) of paragraph (1) of subdivision (a), or under subparagraph (A)
of paragraph (2) of subdivision (a), or under paragraph (1) of this
subdivision, the person shall submit to the remaining test in order
to determine the percent, by weight, of alcohol in the person’s
blood. If both the blood and breath tests are unavailable, the person
shall be deemed to have given his or her consent to chemical testing
of his or her urine and shall submit to a urine test.

(e) If the person, who has been arrested for a violation of Section
23140, 23152, or 23153, refuses or fails to complete a chemical
test or tests, or requests that a blood or urine test be taken, the
peace officer, acting on behalf of the department, shall serve the
notice of the order of suspension or revocation of the person’s
privilege to operate a motor vehicle personally on the arrested
person. The notice shall be on a form provided by the department.

(f) If the peace officer serves the notice of the order of
suspension or revocation of the person’s privilege to operate a
motor vehicle, the peace officer shall take possession of all driver’s
licenses issued by this state that are held by the person. The
temporary driver’s license shall be an endorsement on the notice
of the order of suspension and shall be valid for 30 days from the
date of arrest.

(g) (1) The peace officer shall immediately forward a copy of
the completed notice of suspension or revocation form and any
driver’s license taken into possession under subdivision (f), with
the report required by Section 13380, to the department. If the
person submitted to a blood begin insert , oral fluids, end insert or urine test, the peace
officer shall forward the results immediately to the appropriate
forensic laboratory. The forensic laboratory shall forward the
results of the chemical tests to the department within 15 calendar
days of the date of the arrest.

(2) (A) Notwithstanding any other law, a document containing
data prepared and maintained in the governmental forensic
laboratory computerized database system that is electronically
transmitted or retrieved through public or private computer
networks to or by the department is the best available evidence of
the chemical test results in all administrative proceedings conducted
by the department. In addition, any other official record that is
maintained in the governmental forensic laboratory, relates to a
chemical test analysis prepared and maintained in the governmental
forensic laboratory computerized database system, and is
electronically transmitted and retrieved through a public or private
computer network to or by the department is admissible as evidence
in the department’s administrative proceedings. In order to be
admissible as evidence in administrative proceedings, a document
described in this subparagraph shall bear a certification by the
employee of the department who retrieved the document certifying
that the information was received or retrieved directly from the
computerized database system of a governmental forensic
laboratory and that the document accurately reflects the data
received or retrieved.

(B) Notwithstanding any other law, the failure of an employee
of the department to certify under subparagraph (A) is not a public
offense.

(h) A preliminary alcohol screening test that indicates the
presence or concentration of alcohol based on a breath sample in
order to establish reasonable cause to believe the person was
driving a vehicle in violation of Section 23140, 23152, or 23153
is a field sobriety test and may be used by an officer as a further
investigative tool.

(i) If the officer decides to use a preliminary alcohol screening
test, the officer shall advise the person that he or she is requesting
that person to take a preliminary alcohol screening test to assist
the officer in determining if that person is under the influence of
alcohol or drugs, or a combination of alcohol and drugs. The
person’s obligation to submit to a blood, begin insert oral fluids, end insert breath, or
urine test, as required by this section, for the purpose of
determining the alcohol or drug content of that person’s blood, is
not satisfied by the person submitting to a preliminary alcohol
screening test. The officer shall advise the person of that fact and
of the person’s right to refuse to take the preliminary alcohol
screening test.