Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1829

Introduced by Assembly begin delete Member end delete begin insert Members Levine and end insert Achadjian

February 9, 2016

An act to amend Section 655.1 of the Harbors and Navigation Code, relating to vessels.

LEGISLATIVE COUNSEL’S DIGEST

AB 1829, as amended, begin delete Achadjian end delete begin insert Levine end insert . Vessels: begin delete operating while end delete begin insert operation end insert under the begin delete influence. end delete begin insert influence of alcohol or drugs: chemical testing. end insert

Existing law makes it unlawful for any person to operate a vessel or water-related device while under the influence of an alcoholic begin delete beverage, end delete begin insert beverage or end insert any drug, or both. Existing law directs the administration of a chemical test that is used to analyze an individual’s breath, blood, or urine for evidence of drug or alcohol use begin delete under these specified circumstances. end delete begin insert when the individual is arrested for these actions. Existing law requires the arrested individual to be informed that a refusal to submit to, or failure to complete, the required chemical testing may be used against the person in court and that the court, upon convicting the arrested individual, may impose increased penalties for his or her refusal or failure. end insert

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This bill would instead require the arrested individual to be advised that a criminal complaint may be filed against him or her for operating a vessel or water-related device while under the influence of an alcoholic beverage or any drug, or both; that he or she has a right to refuse chemical testing; and that the officer has the authority to seek a search warrant compelling him or her to submit a blood sample. By imposing new duties on local peace officers, this bill would impose a state-mandated local program.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

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This bill would make a nonsubstantive change to the latter provision.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

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

SECTION 1.  

Section 655.1 of the Harbors and Navigation
Code is amended to read:

655.1.  

(a) As used in this section, “mechanically propelled
vessel” means any vessel actively propelled by machinery, whether
or not the machinery is the principal source of propulsion.

(b)  begin insert (1) end insert begin insert   end insert A peace officer, having reasonable cause to believe that
any person was operating a mechanically propelled vessel or
manipulating any water skis, aquaplane, or similar device under
the influence of an alcoholic beverage or any drug, or under the
combined influence of an alcoholic beverage and any drug, who
lawfully arrests the person for any violation of subdivision (b),
(c), (d), (e), or (f) of Section 655, may request that person to submit
to chemical testing of his or her blood, breath, or urine for the
purpose of determining the drug or alcoholic content of the blood.
begin delete The arrested person shall be informed that a refusal to submit to,
or failure to complete, the required chemical testing may be used
against the person in a court of law and that the court may impose
increased penalties for that refusal or failure, upon conviction. end delete

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(2) The arrested person shall be advised of all of the following:

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(A) A criminal complaint may be filed against him or her for
operating a mechanically propelled vessel or manipulating any
water skis, aquaplane, or similar device under the influence of an
alcoholic beverage or any drug, or under the combined influence
of an alcoholic beverage and any drug.

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(B) He or she has a right to refuse chemical testing.

end insert begin insert

(C) An officer has the authority to seek a search warrant
compelling the arrested person to submit a blood sample as
described in paragraph (16) of subdivision (a) of Section 1524 of
the Penal Code.

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(D) He or she does not have the right to have an attorney present
before stating whether he or she will submit to the chemical testing,
before deciding which chemical test or tests to take, or during the
administration of the chemical test or tests chosen.

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(c)  begin delete (1) end delete begin delete   end delete If the person is lawfully arrested for operating a
mechanically propelled vessel or manipulating any water skis,
aquaplane, or similar device under the influence of an alcoholic
beverage and submits to the chemical testing, the person has the
choice of whether the chemical test shall be of his or her blood or
breath and the person shall be advised by the arresting officer 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 subdivision (n) applies.

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(2)

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begin insert (d) end insert  If the person is lawfully arrested for operating a mechanically
propelled vessel or manipulating any water skis, aquaplane, or
similar device under the influence of any drug or the combined
influence of an alcoholic beverage and any drug and submits to
the chemical testing, the person has the choice of whether the
chemical test shall be of his or her blood, breath, or urine, and the
officer shall advise the person that he or she has that choice.

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(d) The arresting officer shall advise a person submitting to
chemical testing under this section that he or she does not have
the right to have an attorney present before stating whether he or
she will submit to the chemical testing, before deciding which
chemical test or tests to take, or during the administration of the
chemical test or tests chosen.

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(e) A person who chooses to submit to a breath test may also
be requested to submit to a blood or urine test if the arresting
officer has reasonable cause to believe that the person was
operating a mechanically propelled vessel or manipulating any
water skis, aquaplane, or similar device under the influence of any
drug, or the combined influence of an alcoholic beverage and any
drug, and if the arresting officer has a clear indication that a blood
or urine test will reveal evidence of the person being under the
influence. The arresting officer shall state in his or her report the
facts upon which that belief and that clear indication are based.
The person shall have the choice of submitting to and completing
a blood or urine test, and shall be advised by the arresting officer
that he or she is requested to submit to an additional test, and that
he or she may choose a test of either blood or urine. If the person
arrested is either incapable, or states that he or she is incapable,
of completing either chosen chemical test, the person shall submit
to and complete the other remaining chemical test.

(f) (1) A person who chooses to submit to a breath test shall be
advised before or after the breath test that the breath-testing
equipment does not retain any sample of the breath, and that no
breath sample will be available after the breath test which could
be analyzed later by the person or any other person.

(2) The person shall also be advised that, because no breath
sample is retained, the person will be given an opportunity to
provide a blood or urine sample that will be retained at no cost to
the person so that there will be something retained that may be
subsequently analyzed for the alcoholic content of the persons’s
blood. If the person completes a breath test and wishes to provide
a blood or urine sample to be retained, the sample shall be collected
and retained in the same manner as if the person had chosen a
blood or urine test initially.

(3) The person shall also be advised that the blood or urine
sample may be tested by either party in any criminal prosecution.
The failure of either party to perform this chemical test shall place
no duty upon the opposing party to perform the chemical test nor
affect the admissibility of any other evidence of the drug or
alcoholic content of the blood of the person arrested.

(g) If the person is lawfully arrested for any offense allegedly
committed in violation of subdivision (b), (c), (d), (e), or (f) of
Section 655, 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 chemical test of, or to obtain a
particular sample of, the person’s blood, breath, or urine, the person
has the choice of submitting to those chemical tests which are
available at the facility to which that person has been transported.
In this event, the arresting officer shall advise the person of those
chemical tests which are available at the medical facility, and that
the person’s choice is limited to those chemical tests which are
available.

(h) Any person who is unconscious or otherwise in a condition
rendering him or her incapable of refusal may be subjected to
chemical testing of his or her blood, breath, or urine for the purpose
of determining the drug or alcoholic content of the blood, whether
or not the person is begin delete informed that a refusal to submit to, or failure
to complete, the required chemical testing may be used against the
person in a court of law, and that the court may impose increased
penalties upon conviction. end delete begin insert advised of the information specified in
paragraph (2) of subdivision (b). end insert

(i) Any person who is afflicted with hemophilia is exempt from
the blood test provided for in this section.

(j) Any 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 provided for in this
section.

(k) A person lawfully arrested for any offense allegedly
committed while the person was operating a mechanically propelled
vessel or manipulating any water skis, aquaplane, or similar device
in violation of subdivision (b), (c), (d), (e), or (f) of Section 655
may request the arresting officer to have a chemical test made of
his or her blood or breath for the purpose of determining the drug
or alcoholic content of the blood and, if so requested, the arresting
officer shall have the chemical test performed. However, if a blood
or breath test, or both, are unavailable, then subdivision (n) applies.

(l) Any chemical test of blood, breath, or urine to determine the
percentage, by weight, of alcohol in the blood shall be performed
in accordance with Section 23158 of the Vehicle Code.

(m) Nothing in this section limits the authority of a peace officer
to gather evidence from a person lawfully arrested for a violation
of subdivision (b), (c), (d), (e), or (f) of Section 655.

(n) If a blood or breath test is not available under paragraph (1)
of subdivision (c) or under subdivision (k), the person shall submit
to the remaining test in order to determine the percentage, 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.

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begin insert SEC. 2. end insert   

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If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

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