BILL ANALYSIS                                                                                                                                                                                                    






                                                                    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