Amended in Assembly April 29, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1356


Introduced by Assemblybegin delete Memberend deletebegin insert Membersend insert Lackeybegin insert and Gattoend insert

February 27, 2015


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

LEGISLATIVE COUNSEL’S DIGEST

AB 1356, as amended, 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.begin insert Existing law authorizes an officer to use a preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample as a further investigatory tool in order to establish reasonable cause to believe the person was driving a vehicle in violation of certain prohibitions against driving under the influence of alcohol or drugs.end insert

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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.

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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.

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This bill would authorize an officer to use a preliminary oral fluid screening test that indicates the presence or concentration of a drug or controlled substance based on a sample as a further investigatory tool in order to establish reasonable cause to believe the person was driving a vehicle in violation of certain prohibitions against driving under the influence of drugs. The bill would authorize a local law enforcement agency to provide oral fluids testing for these purposes, and would specify that this provision does not require a local law enforcement agency to provide or make an oral fluids test available for these purposes or for purposes of any other law. The bill would prohibit a state law enforcement agency from providing or making an oral fluids test available for these purposes or for purposes of any other law.

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

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

P2    1

SECTION 1.  

Section 23612 of the Vehicle Code is amended
2to read:

3

23612.  

(a) (1) (A) A person who drives a motor vehicle is
4deemed to have given his or her consent to chemical testing of his
5or her blood or breath for the purpose of determining the alcoholic
6content of his or her blood, if lawfully arrested for an offense
7allegedly committed in violation of Section 23140, 23152, or
823153. If a blood or breath test, or both, are unavailable, then
9paragraph (2) of subdivision (d) applies.

10(B) A person who drives a motor vehicle is deemed to have
11given his or her consent to chemical testing of his or her bloodbegin delete or
12oral fluidsend delete
for the purpose of determining the drug content of his
13or her begin delete blood or oral fluids,end delete begin insert blood,end insert if lawfully arrested for an offense
14allegedly committed in violation of Section 23140, 23152, or
1523153. If a blood test is unavailable, the person shall be deemed
16to have given his or her consent to chemical testing of his or her
17urine and shall submit to a urine test.

P3    1(C) The testing shall be incidental to a lawful arrest and
2administered at the direction of a peace officer having reasonable
3cause to believe the person was driving a motor vehicle in violation
4of Section 23140, 23152, or 23153.

5(D) The person shall be told that his or her failure to submit to,
6or the failure to complete, the required chemical testing will result
7in a fine, mandatory imprisonment if the person is convicted of a
8violation of Section 23152 or 23153, and (i) the suspension of the
9person’s privilege to operate a motor vehicle for a period of one
10 year, (ii) the revocation of the person’s privilege to operate a motor
11vehicle for a period of two years if the refusal occurs within 10
12years of a separate violation of Section 23103 as specified in
13Section 23103.5, or of Section 23140, 23152, or 23153 of this
14code, or of Section 191.5 or subdivision (a) of Section 192.5 of
15the Penal Code that resulted in a conviction, or if the person’s
16privilege to operate a motor vehicle has been suspended or revoked
17pursuant to Section 13353, 13353.1, or 13353.2 for an offense that
18occurred on a separate occasion, or (iii) the revocation of the
19person’s privilege to operate a motor vehicle for a period of three
20years if the refusal occurs within 10 years of two or more separate
21violations of Section 23103 as specified in Section 23103.5, or of
22Section 23140, 23152, or 23153 of this code, or of Section 191.5
23or subdivision (a) of Section 192.5 of the Penal Code, or any
24combination thereof, that resulted in convictions, or if the person’s
25privilege to operate a motor vehicle has been suspended or revoked
26two or more times pursuant to Section 13353, 13353.1, or 13353.2
27for offenses that occurred on separate occasions, or if there is any
28combination of those convictions, administrative suspensions, or
29revocations.

30(2) (A) If the person is lawfully arrested for driving under the
31influence of an alcoholic beverage, the person has the choice of
32whether the test shall be of his or her blood or breath and the officer
33shall advise the person that he or she has that choice. If the person
34arrested either is incapable, or states that he or she is incapable,
35of completing the chosen test, the person shall submit to the
36remaining test. If a blood or breath test, or both, are unavailable,
37then paragraph (2) of subdivision (d) applies.

38(B) If the person is lawfully arrested for driving under the
39influence of any drug or the combined influence of an alcoholic
40beverage and any drug, the person has the choice of whether the
P4    1test shall be of his or herbegin delete blood, oral fluids,end deletebegin insert bloodend insert or breath, and
2the officer shall advise the person that he or she has that choice.

3(C) A person who chooses to submit to a breath test may also
4be requested to submit to a blood testbegin delete or oral fluids testend delete if the officer
5has reasonable cause to believe that the person was driving under
6the influence of a drug or the combined influence of an alcoholic
7beverage and a drug and if the officer has a clear indication that a
8blood testbegin delete or oral fluids testend delete will reveal evidence of the person
9being under the influence. The officer shall state in his or her report
10the facts upon which that belief and that clear indication are based.
11The officer shall advise the person that he or she is required to
12submit to an additional test. The person shall submit to and
13complete a bloodbegin delete test or oral fluidsend delete test. If the person arrested is
14incapable of completing the bloodbegin delete test or oral fluidsend delete test, the person
15shall submit to and complete a urine test.

16(3) If the person is lawfully arrested for an offense allegedly
17committed in violation of Section 23140, 23152, or 23153, and,
18because of the need for medical treatment, the person is first
19transported to a medical facility where it is not feasible to
20administer a particular test of, or to obtain a particular sample of,
21the person’sbegin delete blood, oral fluids,end deletebegin insert bloodend insert or breath, the person has the
22choice of those tests, including a urine test, that are available at
23the facility to which that person has been transported. In that case,
24the officer shall advise the person of those tests that are available
25at the medical facility and that the person’s choice is limited to
26those tests that are available.

27(4) The officer shall also advise the person that he or she does
28not have the right to have an attorney present before stating whether
29he or she will submit to a test or tests, before deciding which test
30or tests to take, or during administration of the test or tests chosen,
31and that, in the event of refusal to submit to a test or tests, the
32refusal may be used against him or her in a court of law.

33(5) A person who is unconscious or otherwise in a condition
34rendering him or her incapable of refusal is deemed not to have
35withdrawn his or her consent and a test or tests may be
36administered whether or not the person is told that his or her failure
37to submit to, or the noncompletion of, the test or tests will result
38in the suspension or revocation of his or her privilege to operate
39a motor vehicle. A person who is dead is deemed not to have
P5    1withdrawn his or her consent and a test or tests may be
2administered at the direction of a peace officer.

3(b) A person who is afflicted with hemophilia is exempt from
4the blood test required by this section, but shall submit to, and
5complete,begin delete an oral fluids test orend delete a urine test.

6(c) A person who is afflicted with a heart condition and is using
7an anticoagulant under the direction of a licensed physician and
8surgeon is exempt from the blood test required by this section, but
9shall submit to, and complete,begin delete an oral fluids test orend delete a urine test.

10(d) (1) A person lawfully arrested for an offense allegedly
11committed while the person was driving a motor vehicle in
12violation of Section 23140, 23152, or 23153 may request the
13arresting officer to have a chemical test made of the arrested
14person’s blood or breath for the purpose of determining the
15alcoholic content of that person’s blood, and, if so requested, the
16arresting officer shall have the test performed.

17(2) If a blood or breath test is not available under subparagraph
18(A) of paragraph (1) of subdivision (a), or under subparagraph (A)
19of paragraph (2) of subdivision (a), or under paragraph (1) of this
20subdivision, the person shall submit to the remaining test in order
21to determine the percent, by weight, of alcohol in the person’s
22blood. If both the blood and breath tests are unavailable, the person
23shall be deemed to have given his or her consent to chemical testing
24of his or her urine and shall submit to a urine test.

25(e) If the person, who has been arrested for a violation of Section
2623140, 23152, or 23153, refuses or fails to complete a chemical
27test or tests, or requests that a blood or urine test be taken, the
28peace officer, acting on behalf of the department, shall serve the
29notice of the order of suspension or revocation of the person’s
30privilege to operate a motor vehicle personally on the arrested
31person. The notice shall be on a form provided by the department.

32(f) If the peace officer serves the notice of the order of
33suspension or revocation of the person’s privilege to operate a
34motor vehicle, the peace officer shall take possession of all driver’s
35licenses issued by this state that are held by the person. The
36temporary driver’s license shall be an endorsement on the notice
37of the order of suspension and shall be valid for 30 days from the
38date of arrest.

39(g) (1) The peace officer shall immediately forward a copy of
40the completed notice of suspension or revocation form and any
P6    1driver’s license taken into possession under subdivision (f), with
2the report required by Section 13380, to the department. If the
3person submitted to abegin delete blood, oral fluids,end deletebegin insert bloodend insert or urine test, the
4peace officer shall forward the results immediately to the
5appropriate forensic laboratory. The forensic laboratory shall
6forward the results of the chemical tests to the department within
715 calendar days of the date of the arrest.

8(2) (A) Notwithstanding any other law, a document containing
9data prepared and maintained in the governmental forensic
10laboratory computerized database system that is electronically
11transmitted or retrieved through public or private computer
12networks to or by the department is the best available evidence of
13the chemical test results in all administrative proceedings conducted
14by the department. In addition, any other official record that is
15maintained in the governmental forensic laboratory, relates to a
16chemical test analysis prepared and maintained in the governmental
17forensic laboratory computerized database system, and is
18electronically transmitted and retrieved through a public or private
19computer network to or by the department is admissible as evidence
20in the department’s administrative proceedings. In order to be
21admissible as evidence in administrative proceedings, a document
22described in this subparagraph shall bear a certification by the
23employee of the department who retrieved the document certifying
24that the information was received or retrieved directly from the
25computerized database system of a governmental forensic
26laboratory and that the document accurately reflects the data
27received or retrieved.

28(B) Notwithstanding any other law, the failure of an employee
29of the department to certify under subparagraph (A) is not a public
30offense.

31(h) A preliminary alcohol screening test that indicates the
32presence or concentration of alcohol based on a breath sample in
33order to establish reasonable cause to believe the person was
34driving a vehicle in violation of Section 23140, 23152, or 23153
35is a field sobriety test and may be used by an officer as a further
36investigative tool.

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37(i) A preliminary oral fluid screening test that indicates the
38presence or concentration of a drug or controlled substance based
39on a sample in order to establish reasonable cause to believe the
40person was driving a vehicle in violation of Section 23140, 23152,
P7    1or 23153 is a field sobriety test and may be used by an officer as
2a further investigative tool.

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3(i)

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4begin insert(j)end insert If the officer decides to use a preliminary alcoholbegin insert or oral
5fluidend insert
screening test, the officer shall advise the person that he or
6she is requesting that person to take a preliminary alcoholbegin insert or oral
7fluidend insert
screening test to assist the officer in determining if that person
8is under the influence of alcohol or drugs, or a combination of
9alcohol and drugs. The person’s obligation to submit to a blood,
10begin delete oral fluids,end delete breath, or urine test, as required by this section, for the
11purpose of determining the alcohol or drug content of that person’s
12blood, is not satisfied by the person submitting to a preliminary
13alcoholbegin insert or oral fluidend insert screening test. The officer shall advise the
14person of that fact and of the person’s right to refuse to take the
15preliminary alcoholbegin insert or oral fluidend insert screening test.

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16(k) A local law enforcement agency may provide oral fluids
17testing for purposes of this section. This section does not require
18a local law enforcement agency to provide or make an oral fluids
19test available for purposes of this or any other law. A state law
20enforcement agency shall not provide or make an oral fluids test
21available for purposes of this section or any other law.

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