BILL ANALYSIS Ó
AB 1356
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Date of Hearing: May 5, 2015
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1356 (Lackey) - As Amended April 29, 2015
SUMMARY: Allows the use of an oral fluids screening test to
determine the presence or concentration of drugs, to assist the
officer in making a determination that a person was driving
under the influence of drugs. Specifically, this bill:
1)Provides that a preliminary oral fluids screening test that
indicates the presence or concentration of a drug or
controlled substances based on a sample is a field sobriety
test and may be used in order to establish reasonable cause to
believe the person was driving a vehicle in violation of
specified driving under the influence offenses.
2)States that if an officer decides to use an oral fluids
screening test, the officer shall advise the person that he or
she is requesting that person to take an oral fluids 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.
3)States that a person's obligation to submit to a blood,
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breath, or urine, as required after arrest, for the purpose of
determining the alcohol or drug content of that person's
blood, is not satisfied by the person submitting to an oral
fluids screening test. The officer shall advise the person of
that fact.
4)Requires the officer to advise the person of their right to
refuse to take the oral fluids screening test.
5)Specifies that a local law enforcement agency is authorized,
but not required to provide oral fluids testing for purposes
of this section.
6)States that a state law enforcement agency is not authorized
to provide or make an oral fluids test available.
EXISTING LAW:
1)States that 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 under the influence
of alcohol is a field sobriety test and may be used by an
officer as a further investigative tool. (Veh. Code, § 23612,
subd. (h).)
2)Specifies that 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, breath, or urine test, as required if
arrested for driving a vehicle under the influence of alcohol
or drugs, 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
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screening test. (Veh. Code, § 23612, subd. (i).)
3)States 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 breath for the purpose of determining the
alcoholic content of his or her blood, if lawfully arrested
for an offense allegedly committed in violation driving under
the influence of drugs or alcohol. If a blood or breath test,
or both, are unavailable, then the person shall give urine.
(Veh. Code, § 23612, subd. (a)(1)(A).)
4)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 driving under the
influence of drugs or drugs and alcohol. 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. (Veh. Code, § 23612, subd. (a)(1)(B).)
5)States that 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 specified driving under the influence
offenses. (Veh. Code, § 23612, subd. (a)(1)(C).)
6)Specifies that 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 driving under the
influence or driving under the influence causing injury, 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 specified offenses, or if the person's
privilege to operate a motor vehicle has been suspended or
revoked pursuant to the Department of Motor Vehicles (DMV)
administrative action for driving under the influence of
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alcohol 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 a two or more separate violations of
specified offenses, or if the person's privilege to operate a
motor vehicle has been suspended or revoked pursuant DMV
administrative action for driving under the influence of
alcohol for an offense that occurred on a separate occasion,
or if there is any combination of those convictions,
administrative suspensions, or revocations. (Veh. Code, §
23612, subd. (a)(1)(D).)
7)States that 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 the
individual shall provide urine. (Veh. Code, § 23612, subd.
(a)(2)(A).)
8)Provides that 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 or breath,
and the officer shall advise the person that he or she has
that choice. (Veh. Code, § 23612, subd. (a)(2)(B).)
9)States that a person who chooses to submit to a breath test
may also be requested to submit to a blood test 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 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
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person that he or she is required to submit to an additional
test. The person shall submit to and complete a blood test. If
the person arrested is incapable of completing the blood test,
the person shall submit to and complete a urine test. (Veh.
Code, § 23612, subd. (a)(2)(c).)
10)Requires that the officer 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. (Veh. Code, §
23612, subd. (4).)
11)Specifies that a person lawfully arrested for an offense
allegedly committed while the person was driving a motor
vehicle under the influence, 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. (Veh. Code, § 23612,
subd. (d)(1).)
12)States that if a blood or breath test is not available, 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. (Veh. Code, § 23612, subd. (d)(2).)
13)Provides that if the person, who has been arrested for
specified violations of driving a motor vehicle under the
influence of alcohol or drugs, 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
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vehicle personally on the arrested person. (Veh. Code, §
23612, subd. (e).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 1356 simply
authorizes California law enforcement agencies to use oral
fluid testing to detect drug impaired drivers. The bill does
not impose "a per se" definition-such as the current .08 BAC
limit for alcohol. Instead, AB 1356 allows the option for
using oral fluid tests as evidence to prove a driver was
impaired at the time they were driving. Keeping our state's
road safe from impaired drivers will require innovative
technology which AB 1356 would authorize.
"Driving under the influence of drugs is a growing problem
nationally and in California. A 2014 National Highway Traffic
Safety Administration report found that between 2007 and 2014,
the percentage of drivers with drugs in their system on
weekend nights grew from 16% to 20%--including a 50% increase
in drivers with cannabis in their system. The same study found
that the prevalence of alcohol declined by 30% over the same
period, showing the success of increased enforcement efforts.
"In California, current drug impairment testing utilizes blood
and urine tests. However, logistical delays mean these tests
are not administered at the time of the traffic stop which
makes providing evidence of a driver's impairment difficult
for drugs. For example, 90% of cannabis's THC is cleared from
blood within the first hour of smoking. By the time law
enforcement are able to take a blood test, the results show
very little active THC.
"Oral fluid technology presents a solution to this problem by
allowing an opportunity to provide roadside testing to detect
the presence of drugs at the time of the traffic stop before
the drug has had time to metabolize. Oral fluid testing is now
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used internationally in Australia and Belgium among other
countries, and has been used to administer roadside tests in a
pilot program by the City of Los Angeles since 2012. The Los
Angeles City Attorney's office has cited that impaired driving
cases filed using oral fluid technology as evidence are
pleading out earlier than cases solely using blood tests. The
speed of test results from oral fluids allowed them to be
available at the time of filing the case, while blood results
were still pending at the crime lab.
"Join me in supporting AB 1356 which presents a unique
opportunity to greatly improve roadway safety by allowing law
enforcement to have better tools available to identify
drug-impaired drivers."
2)Alere Mobile Oral Fluid Drug Testing System: The Alere DDS2
is a mobile instrument which analyzes oral fluid for the
presence of drugs. The Alere DDS2 and the Draeger Drug Test
5000 have been used in pilot programs in California. The
Alere unit is stored in a case the size of a small briefcase.
The testing unit can be easily held in the hand.
In order to conduct the oral fluid test, the officer provides
the individual with a handheld swab. The officer observes as
the individual inserts the swab into their mouth. The swab
turns blue when it has absorbed a sufficient amount of oral
fluid for testing. The instrument is turned on and at the
conclusion of the self-check the officer is instructed to
insert the test cartridge. The instrument then reads the
barcode on the cartridge then prompts the officer to insert
the collection swab. At that point, the officer inserts the
swab into the testing machine. The machine analyzes the oral
fluid and tests for the following categories of drugs: THC,
opiates, methamphetamine, benzodiazepines, cocaine, and
amphetamine. The results of the test will be either positive
or negative. The instrument does not quantify the level of
drug(s) in an individual's system. The instrument indicates
the presence of the active component of the drug (if present).
The threshold amount of a drug required to trigger a positive
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result is incorporated into the test cartridge technology.
The machine can provide a paper printout reflecting the results
of the test. The printout reflects date, time, test number,
test Cartridge unique ID, Lot # of test cartridges, Instrument
Serial number and results of the instrument self-check along
with a brief questionnaire of gender-age-type of
vehicle-reason for test also individual's name can be written
in and signed, and test results. The instrument also retains
digital information for the completed tests which can be
accessed at a later date. Alere recommends that the instrument
be tested at least once per day or once during the officer's
shift by using the positive and negative control included with
the instrument. Testing the instrument with known controls
will verify that the instrument is interpreting the test
results correctly.
3)Preliminary Alcohol Screening (PAS) Test: A Preliminary
Alcohol Screening (PAS) Device is a handheld instrument used
to test a breath sample for alcohol in the field. Existing
law allows an officer to ask an individual to take a PAS test
as part of the investigatory process. The test is meant to be
used as a test to assist the officer in making a determination
if probable cause exists to arrest a person was driving under
the influence of alcohol, or alcohol and drugs. (Veh. Code, §
23612, subd. (h).) Before seeking consent to administer a PAS
test, the officer must inform the individual that they have
the right to refuse the PAS test and that if they submit to a
PAS test and are subsequently arrested for DUI, they must
still provide a separate sample for testing (breath, blood,
urine). (Veh. Code, § 23612, subd. (i).)
4)Driving Under the Influence (DUI) Investigations: A DUI
investigation is triggered when an officer has reasonable
suspicion that an individual is driving under the influence of
alcohol, drugs, or the combined influence of alcohol and
drugs. A person is under the influence if, as a result of
drinking an alcoholic beverage and/or taking a drug, his or
her mental or physical abilities are so impaired that he or
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she is no longer able to drive a vehicle with the caution of a
sober person, using ordinary care, under similar
circumstances. (CALCRIM no. 2110.) The DUI investigation can
be triggered by an individual's driving pattern, or based on
an observation of the person's demeanor or physical dexterity
when the officer makes contact with the driver. Once an
officer has reasonable suspicion that a person is driving
under the influence, they will conduct the DUI investigation.
One component of the investigation is a series of questions
which include, among other things, the individual's
consumption of alcohol (amount and timing). Generally, the
officer will also have the individual participate in a series
of field sobriety tests. Those tests are designed to test a
person's balance, physical ability, and attention. One field
sobriety test that can be the administered is a PAS test, if
the individual consents. If an officer suspects that an
individual is under the influence of drugs, or the combined
influence of alcohol and drugs, the officer can conduct an
evaluation for drug impairment. Drug Recognition Experts
(DRE) are trained in identifying signs of impairment based on
drug use. If an officer has not been, trained as a DRE, the
officer can call a DRE to the scene to assist with the
investigation. At the conclusion of the investigation, the
officer(s) will make a decision to arrest the individual, or
release them. If the individual is arrested, they must
provide a sample for analysis of alcohol (blood, breath, or
urine), or drugs (blood or urine), or combined influence of
alcohol and drugs (blood or urine). (Veh. Code, § 23612.)
5)The DRE Protocol: The DRE protocol is a standardized and
systematic method of examining a Driving Under the Influence
of Drugs (DUID) suspect to determine the following: (1)
whether or not the suspect is impaired; if so, (2) whether the
impairment relates to drugs or a medical condition; and if
drugs, (3) what category or combination of categories of drugs
are the likely cause of the impairment. The process is
systematic because it is based on a complete set of observable
signs and symptoms that are known to be reliable indicators of
drug impairment. A DRE never reaches a conclusion based on
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any one element of the evaluation, but instead on the totality
of facts that emerge. The DRE evaluation is standardized
because it is conducted the same way, by every drug
recognition expert, for every suspect whenever possible.
Standardization is important because it makes the officers to
be better observers, helps to avoid errors, and promotes
professionalism. http://www.decp.org/experts/12steps.htm
6)Oral Fluid Pilot Programs in Fullerton, Sacramento, Los
Angeles and Kern County: There have been pilot programs used
by law enforcement in Los Angeles, Fullerton, Sacramento and
Bakersfield involving oral fluid testing. In those
jurisdictions, oral fluid testing was only given during a DUI
investigation if the subject agreed to the test. The law
enforcement agencies used either the Draeger Drug Test 5000 or
the Alere DDS2. The subjects that provided oral fluid
samples, also provided blood samples. The results of the oral
fluid tests were compared to the results from the blood test
to determine the reliability of the oral fluid tests to
identify the presence of drugs.
There were 92 subjects in the Fullerton sample using the Alere
DDS2. The oral fluid test produced one 1 false positive and 9
false negatives.
There were 34 subjects in the Sacramento tested using the Alere
DDS2. The oral fluid test produced 7 false positives, 1 false
negative.
In Los Angeles and Kern counties a total of 235 individuals
provided oral fluid samples amazed with the Draeger Drug Test
5000. There were 10 false positives and 8 false negatives.
Some false negatives in the oral fluid samples might be
explained by the fact that the threshold to trigger a positive
result in the oral fluid can be higher than what is tested
for, and detected, in the blood analysis.
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The Los Angeles Police Department has used the Draeger DT 5000
at sobriety checkpoints to collect oral fluid when subjects
consented to the test. The officer gets an immediate printout
of the results. The officer takes a second sample for
overnight shipping to National Medical Services Labs to
conduct confirmation test to later be introduced into court.
(For the Road, October 2013, Volume 7, Issue 4, Collecting
Oral Fluid Evidence in Drugged Driving Cases, by Phil Rennick,
California TSRP and Janette Flintoft, Deputy LA City Attorney.
7)Argument in Support: According to We Save Lives, "While drunk
driving continues to be addressed by legislators, 20% of
vehicular crashes are caused by drugged driving. In the
United States, this translates into an estimated 8,600 deaths,
580,000 injuries, and $33 billion in property damage each year
(Institute for Behavior and Health).
"What you may not know but should is that:
"Drugged drivers frequently escape prosecution which means -
"No conviction which means -
"No punishment or accountability which means -
"No rehabilitation which means -
"No justice for the victim/survivor and -
"No protection for society
"However, there are methods of combatting this crime and one
major way is through roadside oral fluid testing. These
devices halt drugged drivers in their tracks by providing law
enforcement the tools they need to test a suspicious driver
quickly, easily and effectively, thereby providing more
protection for the innocent driver on the roadway. We Save
Lives does not endorse any particular product.
"Approximately 13 states allow for oral fluid testing. If we
limit the specimens (blood, urine, oral fluids) that can be
collected we could be missing the opportunities to utilize new
and cost-efficient resources available to law enforcement.
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Oral fluids are becoming a popular option for law enforcement
because the test is less intrusive, and possibly more
cost-effective than other standard forensic testing
procedures. It eliminates cheating, is non-invasive and it can
be conducted at roadside. Oral Fluid testing is currently
being utilized in a number of countries, including Great
Britain, Australia, Germany, Switzerland, France and Belgium
plus these devices are now being used in several states
including California, Nevada, Arizona, Vermont and Tennessee.
Canada just approved Oral Fluid legislation.
"The City of Los Angeles received permission to use oral fluid
testing and began a pilot project utilizing them in driving
under the influence (DUID) cases. According to an article
entitled Collecting Oral Fluid Evidence in Drugged Driving
Cases by Phil Rennick, California TSRP and Janette Flintoff,
Deputy LA City Attorney, 'The results are measurable: cases
filed with oral fluid evidence are pleading out earlier with
this additional evidence, which is available at the time of
filing, contrasted with cases awaiting blood test results from
the lab.' Oral fluid provides officers the opportunity to
collect critical evidence close to the time/at the initial
contact when the objective signs of impairment are present.
"The National Highway Traffic Safety Administration (NHTSA) has
been using these devices since 2007 in National Roadside
Surveys and is now providing grant funding for states who wish
to purchase them."
8)Argument in Opposition: According to The Drug Policy
Alliance, "Oral Fluid Tests are Unreliable and May lead to
False-Positives
"Drug testing, like many other forensic disciplines, is highly
technical and imperfect. There are a host of problems with
drug testing techniques and analyses, including the
substantial risk of false positive test results, false
negative test results, specimen contamination, and chain of
custody, storage and re-testing issues. As the toxicological
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literature makes clear, 'a number of routinely prescribed
medications have been associated with triggering
false-positive results.'
"Research demonstrates that oral fluid tests may return false
positives for THC. For instance, research has found that
false positive THC test results have been associated with the
passive ingestion (i.e. second-hand) of marijuana smoke.<1>
Similarly, other studies have demonstrated that heavy
marijuana uses who abstain from marijuana use for at least a
week have returned positive oral fluid THC tests.<2> Finally,
the use of pharmaceutical drugs, like Marinol and Sativex,
typically returns positive oral fluid THC test results.
"Marijuana Intoxication and Crash Risk
"Even if the oral fluid tests were more reliable, it is still
unclear how they would measure crash risk. As Jeff Michael,
Standards Associate Administrator of research and Program
Development for the National Highway Traffic Safety
Administration (NHTSA), stated in testimony before the House
of Representatives Committee on Oversight and Government
Reform. Michael stated in relevant part:
'The available evidence does not support the development of an
impairment threshold for THC which would be analogous to that
for alcohol . . . With alcohol, we have considerable body of
evidence that can place risk odds at increasing levels of
blood alcohol content. For example, 0.08 [percent] blood
alcohol content is associated with about four times the crash
risk of a sober person . . . Beyond some broad confirmation
that higher levels of THC are generally associated with higher
levels of impairment, a more precise association of various
THC levels and degrees of impairment [is] not yet available.'
---------------------------
<1> See, e.g., S. Niedbala et al., Passive cannabis smoke
exposure and oral fluid testing, 28 J Anal Toxicol 546 (2004).
<2> HT Andas et al., Detection time for THC in oral fluid after
frequent cannabis smoking, 36 Ther. Drug Monit. 808 (2014).
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"Moreover scientific evidence demonstrates that despite higher
levels of THC being generally associated with increased
driving impairment, a more precise association between
specific levels of THC intoxication and crash risk cannot be
supported. For instance, some studies demonstrate that THC's
adverse effects on driving impairment appear relatively small
or uncertain. While others show inconsistent results about
the effect of marijuana on driving impairment."
9)Prior Legislation:
a) SB 289, Correa, Legislative Session of 2013-2014, would
have made it unlawful for a person to drive a motor vehicle
if his or her blood contains any amount of specified drugs,
unless the drug was consumed in accordance with a valid
prescription. The bill died in the Senate Public Safety.
b) AB 1215, Benoit, Legislative Session of 2007-2008, would
have prohibited a person who has a measurable amount of
specified drugs in his or her blood or urine from driving a
vehicle or being in actual physical control of a vehicle on
a highway. The bill died in the Assembly Public Safety.
REGISTERED SUPPORT / OPPOSITION:
Support
California Association of Code Enforcement Officers
California Association of Highway Patrolmen
California College and University Police Chiefs Association
California Narcotic Officers Association
California Peace Officers' Association
California Police Chiefs Association
Diageo
DUID Victim Voices
Foundation for Advancing Alcohol Responsibility
International Faith Based Coalition
Los Angeles Deputy Sheriffs
Los Angeles Police Protective League
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Riverside Sheriffs Association
We Save Lives
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Drug Policy Alliance
Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744